ML20210L197
| ML20210L197 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 04/24/1986 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| CON-#286-016, CON-#286-16 LRP, NUDOCS 8604290238 | |
| Download: ML20210L197 (120) | |
Text
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ORIGIN)Q O
UNITED STATES NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
DOCKET NO:
LRP INQUIRY INTO THREE MILE ISLAND UNIT 2 - LEAK RATE DATA FALSIFICATION PREHEARING CONFERENCE O
LOCATION:
eETHespA, MAnyLAno PAGES:
86 204 DATE:
THURSDAY, APRIL 24, 1986 ff-0/
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O ACE-FEDERAL REPORTERS, INC.
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NUCLEAR REGULATORY COMMISSION 3
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
- - - - - - - - - - - - - - - - -x 4
In the Matter of:
I Docket No.: LRP INQUIRY INTO THREE MILE ISLAND 6
UNIT 2 - LEAK RATE DATA PREHEARING CONFERENCE FALSIFICATION 7
- - - - - - -x 8
Nuclear Regulattey Commission 9
Fif th Floor IIcaring Room 4350 East-West Highway
~
10 Bethesda, Maryland 11 Thursday, April 24, 1986 i
1 12 ;
()
The prehearing conference in the above-entitled matter convened at 11:05 a.m.
l 14 i
15 BEFORE:
I 16 i
JUDGE JAMES L.
KELLEY, Chairman j
Atomic Safety and Licensing Board Panel i
I7 U.S.
Nuclear Regulatory Commission i
Washington, D. C.
20555 18 l
JUDGE JERRY R. KLINE, Member 19 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission l
20 Washington, D.
C.
20555 JUDGE GLENN O.
BRIGHT, Member 21 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission f
22 Washington, D.
C.
20555 23
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25 l
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87 APPEARANCES:
2 On behalf of GPU Nuclear 3
ERNEST L.
BLAKE, ESQ.
J.
PATRICK HICKEY, ESQ.
4 Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.
Washington, d.
C.
20036 5
On behalf of Former Metropolitan 6
Edison Employees:
7 HARRY 11. VOIGT, ESQ.
MOLLY BOAST, ESQ.
8 LeBoeuf, Lamb, Leiby & MacRae 1333 New Itampshire Avenue, N.W.
Washingto.i, D.
C.
20036 9
On behalf of NRC Staff:
JACK R.
GOLDBERG, ESQ.
j 11 MARY E. WAGNER, ESQ.
Office of Executive Legal Director 12 U.S.
Nuclear Regulatory Commission
(-
Washington, D.
C.
20555 13 On behalf of Jack lierbine:
Id JAMES B.
BURNS, ESQ.
Sham, Lincoln & Beale 15 Three First National Plaza l
Chicugo, Illinois 60602 l
16 !
1 On behalf of Gary Miller:
{
N MICIIAEL W.
MAUPIN, ESQ.
Hunton & Williams I
l 18 P.
O.
Box 153L Richmond, Virginia 2321.
19 i
On behalf of Committee on IIcalth l
20 Aspects and Management of Nuclear Powers l
l MARJORIE M. AAMODT 21 P. O.
Box 652 Lake Placid, New York 12946 On behalf of Former Metropolitan 23 Edison Employees:
24 SMITl! B.
GEPIIART, ESQ.
Aa Fcind Rmorters. Inc.
Killian & Gephart f
25 216-218 Pine Street, Box 886 l
Ilarrisburg, Pennsylvania 17108 j
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PROCEEDINGS 2
JUDGE KELLEY:
Good morning, formally, from the 3
Board of Kelley, Bright and Kline.
4 Shall we go around the table and get 5
introductions of counsel?
6 MR. GOLDBERG:
Jack Goldberg, representing the 7
NRC Staff.
With me is Mary Wagner.-
8 MR. BLAKE:
Ernest Blake, representing GPU 9
Nuclear, and with me, J.
Patrick Hickey.
10 MR. VOIGT:
I am Harry Voigt, representing 11 numerous former employees.
12 I would like to introduce my associate, 13 Mrs. Boast, who is sitting next to me this morning.
You 14 already know my cocounsel, Mr. Gephart.
15 MR. BURNS:
My name is Jim Burns.
I represent 16 Jack Herbine 17 MR. MAUIIN:
My name is Mike Maupin, and I i
18 represent Gary Miller.
19 MS. AAMODT:
My name is Marjorie Aamodt, and I f
20 represent my family and numerous residents of the TMI area.
21 JUDGE KELLEY:
As stated in our brief notice of f
22 this prehearing of April 11, this prehearing conference was 23 brought on by the telephone conversation of the lith, in 24 which we agreed to out over to now some questions that have 25 arisen about our order of April 3.
We would like to
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discuss, basically, the order of April 3 and the matter of g
2 scheduling, the responses to the order of March 26 and 3
matters related to that.
4 In terms of sequence, it seems to us best to talk 5
first about the responses to the March 26 order, to cualify 6
the April 3 order and'the schedulino questions.
We may talk 7
briefly about two motions from Mrs. Aamodt, and then I am 8
sure there will be other matters the parties may want to 9
raise.
10 Let us underline that we don't see this as an 11 occasion to go down each and every point and hear from each 12 and everybody on everything.
Rather we have called for 13 comment and not the comment primarily for the Board to ask 14 questions and the parties to expand on particularly 15 important points.
16 And that is our perspective on things.
17 We put the scheduling issue over.
That is the 18 important question that it seems to us some of the 19 discussion here this morning may have a bearing on.
20 So we would like to go in the order suggested.
21 Turning first to the numerous employees' 22 comments, two sets of comments, one related to witnesses on 23 documents and the other related to prior statements, and we 24 are focusing primarily on the first, the response of the
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25 employces to Part 2(c) concerning witnesses and documents.
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Mr. Voigt, you have indicatred in the past an
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2 objection to Mr. Stier as a witness and to the admission of 3
the entire Stier report and objected again this time -- let 4
me paraphrase briefly -- on the ground that Mr. Stier, in 5
his report, contained conclusory statements, and you object 6
on that ground.
7 As I understand your position -- and correct me, 8
if I am wrong -- you would basically have the Roard focus on 9
the testimony on the parties, on documentary evidence, 10 direct documentary evidence, if you will, test results, and 11 the like, and expert testimony of the sort of neutral type, 12 but that you would like us to stay away from the Stier 13 report's analysis of individual responsibility, and the same 14 question may be raised later, I assume, when we cet the OI 15 Staff reports.
16 We have some concerns about that general 17 position, and I would like to indicate to you what they 18 are and then ask you to comment on them.
19 First of all, I gather that this is basically a 20 fairn,ss objection that you are making, but it is not clear 21 to us why it would be unfair to look at these documents from 22 a purely practical standpoint, if we aren't to have the 23 Stier report in front of us, and that is the one, the 24 immediate objection pertains to.
4
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25 It seems to us that we would then be forced, in ACE. FEDERAL REPORTERS, INC, 202 347 3700 Nationwide Cmerage 8mj366M6
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effect, to replicate what Mr. Stier did, and he did a creat, 2
arrived at certain conclusions.
We assume, although we 3
haven't.seen the OI report, that they will do much the same 4
sort of thing, reach certain conclusions.
5 Our question is,.why shouldn't the Board accept 1
6 the-conclusions drawn by thesa investigators, indeed, just 7
like the Commission does?
8 This proceeding is an unusual, if not novel 9
proceeding, where there is opportunity for inquiry prior to 10 the institution of the show cause proceeding or license 11 revocation proceedinq.
Certainly, in those situations, it i
j 12 is my experience the Commission gets reports of a conclusory 13 from OI and decidos whether or not to instituto l
14 proceedings.
15 Why shouldn't we be in the same posture?
16 It really does concern us, if we are to take sort
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17 of raw direct evidence and nobody else's analysis, that we 18 are sort of back in square one, and now we've qot Stier 19 going out and lookinq at these things, we've had OI go out 20 and look at these things, NRR goes out and looks at these j
21 things, and we start all over from the beginning.
t 22 And why should we do that?
3 23 MR. VOIGT:
You shouldn't.
In a sense, we are i
24 not objecting, indeed, we are advocating that you review the
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25 work of technical experts who have analyzed this data.
We l
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are, by no means, suggesting that you start with the strip l
2 charts.
We want the technical witnesses to testify.
j 3
Our problem with Mr. Stier is twofold.
As I L
4 understand the Commission's order, it told this Board to l-l 5
make independent findings and conclusions concerning the 6
responsibility of a large number of individuals.
Mr. Stier 7
has obviously reached his own conclusions, and we think it 8
is simply improper to permit him to substitute his judgment l
9 for yours.
l 10 We are not objecting to any of the work that has l-11 been done being received by the Board.
It is the l
12 conclusions, because we think you have the obligation to 13 draw your own conclusions, and it is a little hard for an 14 individual employee to believe that the Board has drawn its 15 own conclusions, if we sit here and receive the conclusions 16 of other people as evidence.
l 17 Now there is another problem with Mr. Stier which j
1 18 only underlines what I've said.
He never even talked to L
19 these people.
So far as I am aware, Mr. Stier never l
l l
20 interviewed one of our clients.
If you call him as a 21 witness, it is like calling the editor of the " Law Review" l
22 to testify about an article that somebody eine wrote.
Wo 23 are suggesting that you get the author in here as a witness, 24 not the editor.
It is just as simple an that.
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25 JUDGE KELLEY:
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assess conclusions from different people and agree with 7
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2 part, disagree with part, and come to its own conclusions.
3 I don't see how we are precluded from reaching an 4
independent conclusion because we consider what somebody 5
else concluded.
6 MR. VOIGT:
You are clearly not precluded, but I 7
think you see my point.
You begin to wonder how independent 8
the Board's conclusions are, if you start with a data base 9
that includes the conclusions of other people.
10 So we are trying to separate what we perceive to 11 be facts, including all of the technical analyses from the 12 pure conclusions that have been drawn by Mr. Stier, and I
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14 conclusions about quilt or innocence, and we would have the 15 same objection then.
16 Let the facts come in and speak for themselves.
17 JUDGE KELLEY:
I have attempted to parse the 18 Stier report in terms cf pure conclusions.
I would have 19 preferred, however, judging on the sheer bulk of Stier that 20 you want out, that there in more in there than pure 21 conclusion.
22 MR. VOIGT I don't really think that is right, 23 Judge Kelley.
We have affirmatively proposed that Volume 4, 24 Volumo 5 and Volume 6 -- Volume 4 and Volume 5 como in, 25 basically, as evidence, Volume 6 he available as reference
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mater al.
2 The first three volumes are really -- you know, 3
Stier's discussion of who did what to whom, and that we find 4
to be objectionable.
5 JUDGE KELLEY:
Thank you.
6 On page 2 of that same filing, toward the bottom 7
of page 2, we have eight people listed.
Now in retrospect, 8
the Board said to itself, or we should have said, don't just 9
name witnesses but tell us why you want them.
We weren't 10 smart enough to do that, so we've got names.
11 Could you expand briefly -- some might be 12 obvious.
I think we know auite a bit about Mr. Chung.
But 13 on the other names that you have horn, could you indicate 14 briefly why you consider them to be important witnesses?
15 MR. VOIGT Certainly.
Let's just go down the 16 list.
17 Number one is Mr. lla ve rcamp.
Mr. flavercamp was a 18 regionally baned inspector, who conducted certain 19 inspections at Three Mile Island Unit 2, prior to the 20 accident.
One of those inspections directly concerned the 21 subject of thin inquiry, which in the way that the people in 22 the plant were filling out and filing or fallinq to file 23 leak rate reports, and that inspection, in turn, generated 24 a liconnee event report by Metropolitan Edinon to the NRC.
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controversy about that licensee event report.
And it has
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2 heen argued in other fora that if people didn't know what 3
the rules were before Mr. Haverkamp's inspection and the 4
licensee event report, they should, in some way, have been 5
placed on notice theroa ter that they weren't following the 6
rules right.
7 The documents that are associated with 8
Mr. Haverkamp's inspection have been proposed later on in 9
our list, and we think it is important that the Board hear 10 firsthand from Mr. Haverkamp what he found on October 18th 11 and how he reacted to it, and who he spoke to about it and 12 what recommendations or admonitions, if any, he gave to the 13 licensee personnel and also what follow up.
Did he come 14 back and reinspect to see whether the licensee had gotten 15 into compliance?
Were there any commitments made that were 16 not followed up?
17 That is, we think, pretty relevant to the whole 18 inquiry.
19 Dr. Chung, you understand, I believe.
l 20 Mr. Weinzinger, as a Staff employee, wan a member of the 1
l 21 committee that approved the Instrument Society of America l
22 standard for lichtwater reactor coolant pressure boundary i
23 leak detection, so he is presumably cae of the Staff's l
24 leading experts on leak rates.
We believe he miqht have l
25 somethinq to contribute to the Board's understanding of
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how a leak rate procedure should be written down and 2
administered.
3 Mr. Bettenhausen is in the operations Branch in 4
the Division of Reactor Safety in Region 1, and he is the 5
author of an affidavit which was submitted by the Staff in 6
response, I believe, to one of Mr. Lewis' pleadings, and he 7
talks about the review and evaluation of reactor coolant 8
leak rate measurement at facilities within Region 1.
And in 9
his affidavit, he addressed the margin of safety in the leak 10 rate, and we believe that is something the Board should hear 11 about.
12 Mr. Keimic, I haven't met him, so I don't know he 13 pronounces his name, was the chief of one of the Reactor 14 Project sections in the office of Inspection and 15 Enforcement, and he signed off on Mr. ilaverkamp's inspection 16 reports.
We don't know how much he knows.
Maybe he doesn't 17 know anythinq, but we would like to find out.
18 Mr. Moore is an enqineer who works for the GPU 19 Service Company, fie is shown on the cover of the Faeqre and 20 Ronson report as being one of its authors or contributors.
21 I happen to have met Mr. Moore, throuqh the courtesy of GPU 22 counsel.
I found him to be very knowledqeable. about the 23 technical asnects of the leak rate procedure.
I think he 24 also can give you a litt19 background of how thin particular 25 procedure developed within this particular company, because Acti-171tuliR A1. Illii'on't fins, INC.
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he apparently was there unseen.
And basically, if you get 7 S O
2 Mr. Rockwell or one of Mr. Rockwell's associates as a 3
witness, wo are suggesting that Mr. Moore ought to come 4
along at that time.
5 Mr. Harrison kind of falls in the same category.
6 We have identified him as the person who was principally 7
responsible for that part of the Stier report that 8
admittedly was not written by Stier but was prepared by the 9
consultant firm.
If they want to send us someone other than 10 Mr. Harrison, that is fine with us.
We just want to be sure 11 that there is someone from that firm who can speak to the 12 technical analysis that they conducted.
("N 13 Number oiqht, the Office of Regulatory Guido b
14 145.
145, as we list later on, is the Reg Guido on leak 15 rates, and we don't know who wrote it.
We assume that the 16 Staff knows, and we are suqqosting that the document become 17 part of the technical background for this hearing, and that 18 somebody como here and be prepared to explain some of the 19 things that are in the documant.
20 Then we have Mr. Hartman on the next page.
21 JUDGE KELLEY:
Right.
We understand about I
22 Mr. Hartman.
23 I would like to do this in an orderly and 24 reasonable time frame.
I know we talked a bit with the 25 Staff about some of the Staff people that have named.
Wo
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' thought wE would a'sk them on record to add whatever they 2
want to add about'some of the designated names.
3 We could go_around the table and get any comments c'ncerned.
There's a 4
or objections.
I might be a little o
lotofcommentandiobjectionjustabfbthatweget.through
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theprocessandnobgettootherthings.
At least we would 7
like to hear from the Staff.
l 8
Jack Goldberg, who is going to have some comments i
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9 on some of the people that Mr. Voigt just named, let's hear t
10 from him and see how it works from there.
11 f
12 13 14 15 3
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18 19
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the Phase 1-A hearing, it was to provide a background of 2
technical information that would be necessary to understand 3
the significance of what took place at TMI 2 in connection 4
with leak rate testing before the accident and provide a 5
core of material information which the Board could rely on.
6 It was, I think, always understood that there 7
would be the opportunity to identify particular needs for 8
other witnesses or documents, i f that was felt to be 9
appropriate after this core material was put in the record.
10 A number of the witnesses who you have proposed 11 don't have any knowledge of leak rate testing at TMI 2 12 before the accident or virtually no involvement at all in
~n 13 anything that would be material to this hearing.
14 Certainly, Chung did so some work on TMI 2 leak 15 rate testing.
However, that was done sometime ago, and the 16 full technical analysis which supports the Staff's findings 17 and conclusions will be provided to the parties with the 18 Staff and OI reports when they are available.
That 19 information does not include the Chung report, because the 20 analysis that Chunq did was essentially redone by the Staf f 21 members who conducted the recent investigation.
22 Mr. Keimig has no knowledqe of anything that 23 would be of assistance to the Board.
Neither does 24 Mr. Weinzinger, Mr. Bettenhausen.
('
25 JUDGE KELLEY:
Could you spell out a little why
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MR. GOLDBERG:
First of all, some of the things e
2 Mr. Voigt,wants covered by various of these witnesses will 3
'ue covered by the Staff witnesses, which we are proposing 4
Mr. Wermeil. and Mr. Kirkpatrick, particularly Reg Guide 145, 5
they weil be knowledgeable about that.
They are the 6
technical experts which we have available to discuss the 7
leak rate testing process, the regulatory basis for it, the 8
requirement and the reasons for the requirement.
The plant 9
technical specifications include methods for leak rate 10 testing, and specifically, what the TMI 2 tech specs 11 operating procedures, administrative controls, et cetera, 12 provide during the relevant time period.
13 So it is our intent that those witnesses will i
14 fully cover some of the things which Mr. Voight wishes these 15 various witnesses to cover.
16 JUDGE KELLEY:
Could I iust iniect a point at 17 this point for your consideration?
18 You have your -- unless Staf f comes back and says 19 we've got these other guys, one approach, I suppose, we 20 could take is hearing the Staff witnesses and then hear from 21 you as to whether a certain point by a certain witness 22 didn' t get covered.
That, at least, is something you might 23 bear in mind.
24 Go ahead.
25 MR. GOLDBERG:
I think as far as I understand J
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that is the case, in your view, on those three?
g3O.
2 MR. GOLDBERG:
Sure.
3 Mr. Bettenhausen was D,r,. Chung's supervisor 4
during the time that he gave his analysis of TMI 1 leak rate 5
testing and TMI 2 leak rate testing, although 6
Mr. Bettenhausen didn't actually review Dr. Chung's work and 7
reports on TMI 1 leak rate testing.
He did not review or 8
discuss with Dr. Chung any of the work that Dr. - Chung did on u
TMI 2 leak rate testing, which is the subject of this I
10 proceeding.
He sole involvement in Dr. Chung's work on TMI 11 2 was that he happened to be Dr. Chung's supervisor and 12 approved his travel during that time period that Dr. Chung 13 did that work, which was done for the grand jury, and 14 therefore, was not discussed with Mr. Bettenhausen.
15 Mr. Weinzinger, for a period of a couple of weeks 16 during 1978 and '79, did review certain procedures that were 17 being developed at that time, but had no actual involvement i
18 in any inspection or investigation of TMI 2 leak rate 19 testing and doesn't believe he has anything to offer that 20 can be of assistance to the Board to resolve the issues 21 within the scope of this proceeding.
22 Mr. Keimig was, in fact, Mr. Haverkamp's 23 supervisor during the time that Mr. Haverkamp did the 24 inspections at TMI and wrote up inspection reports 25 concerning TMI 2 but had no actual involvement in the
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inspections or any investigation, has no firsthand knowledge 6MMbw 2
of any of the practices at TMI 2 in connection with leak 3
rate testing and would have approved inspection report only 4
in an administrative sense of being Mr. Haverkamp's 5
supervisor and approving the issuance of the inspection 6
report.
He has no knowledge of any events within the scope 7
of the proceeding.
8 JUDGE KELLEY:
Brief response, Mr. Voigt?
9 MR. VOIGT:
First of all, it is very important 10 for the Board to be aware at the outset that at least in our 11 view it is terribly wrong to create a dichotomy between TMI 12 Unit 1 and TMI Unit 2.
The evidence will show that the leak 13 rate test procedure for TMI Unit 2 was modeled af ter the 14 procedure that it had already been approved and used for 15 several years at TMI 1.
There were some changes, because 16 TMI 2 has the so-called " standard tech specs" and TMI 1 had 17 custom tech specs, but there is a clear geneology from TMI 1 18 to TMI 2.
That is true of this procedure, it is true of the 19 practices, and it is true of the understanding of the 20 individuals.
And in that connection, you should also be 21 aware and remember that in 1978 and 1979, all of the shift f
22 supervisors were cross licensed for both units, and there 23 was only one shift supervisor per shift for the two units.
24 So obviously, the shift supervisor who was going 25 to interpret what needed to be done at Unit 2 was going to ACE-FEDERAL REPORTERS, INC.
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draw-on his licensing and his experience and his background 2
in Unit 1.
3 Finally, the Supervisor of Operations, Mr. Floyd, 4
had an extensive background at Unit 1 before-he was given 5
the responsibility for Unit 2.
So when Mr. Goldberg says 6
that Mr. Rettenhausen never reviewed anything from Unit 2, I 7
accept that representation, but I want to find out from 8
Mr. Bettenhausen what he thought about the Unit 1 procedure 9
which he wrote an affidavit about and submitted to a 10 licensing board.
And in that affidavit, he discussed the 11 significance or lack thereof of the evaporative loss factor 12 which was included in the Unit l' procedure and nact included r")
13 in Unit 2, and we regard the fact that it wasn't included in NJ 14 Unit 2 as being very important, that will be one of the 15 things we want to trace and put on the record, why the NRC, 16 having previously approved an evaporative loss factor for 17 Unit 2 and a lot of other plants, suddenly decided that Unit 18 2 wouldn't have an evaporative loss factor.
19 So that is why Mr. Bettenhausen is on the list, 4
~20 and we think he should stay on the list.
21 With respect to Mr. Weinzinger, I accept 22 Mr. Goldberg's representation that what we thought he could 23 testify about may very well be covered by the other 24 witnesses, and I think your suggestion, maybe, la the best
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25 one.
Let's wait and see.
If we are not satisfied, we might I
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now.
3 JUDGE KELLEY:
Okay.
4 MR. VOIGT:
With respect to Mr. Keimig, I think 5
the fact that he routinely approved these reports and never 6
had any follow-up, apparently wasn' t concerned that this was 7
a real problem in and of itself, may be significant.
The 8
fact that he doesn't know anything might be significant.
9 So.I would like to keep him on the list.
10 JUDGE KELLEY:
Thank you.
11 Do the other counsel and parties have objections 12 to Mr. Voigt's proposed witnesses we just talked about?
13 Mr. Blake?
In saying that, I don't necessarily
. (b 14 mean that you support the witnesses, just whether you object 15 to Mr. Voigt's calling the person.
-16 MR. BLAKE:
No, I don't have any objection, 1.
17 despite that some of these individuals like Mr. Hartman or 18 maybe Mr. Haverkamp are not what I had envisioned as a 4
19 background with core technical knowledge to help the Board 20 and the parties all have a common understanding of what was 21 leak rate testing all about.
22 Frankly, I see these maybe more in the way of 23 factual witnesses down the road then technical at this 24 point.
Also another point -- maybe this is covered, 25 although Mr. Voigt didn't address it, that the authors of
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Reg Guide 1.45 would also be covered by the Staff
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2 witnesses.
Maybe he is calling that one off as well.
3 JUDGE KELLEY:
Mr. Burns?
4 MR. BURNS:
I have no objection as to the 5
technical witnesses that have been discussed.
As far as 6
Mr. Stier is concerned, I don't view what he had to say 7
about my client as necessarily technical.
I think it would
-8 go to perhaps the second phase of the hearing.
I might also 9
point out to your Honor that unlike many other parties in 10 this proceeding, my client was personally interviewed by 11 Mr. Stier, and I personally had discussions with Mr. Stier 12 about his investigation, so I may be in a little bit 13 different situation.
f^)
'v 14 JUDGE KELLEY:
Mr. Maupin?
15 MR. MAUPIN:
Do you want me to address the list 16 proposed by numerous. employees on page 27 17 JUDGE KELLEY:
Yes.
We were trying to do this in 18 an orderly way.
19 MR. MAUPIN:
I have no objection.
20 JUDGE KELLEY:
You have no objection?
Okay.
21 That is easy.
22 Ms. Aamodt?
23 MS. AAMODT:
I just have-one objection, and that 24 is to number 7.
Mr. Harrison of MPR.
I find this is 25 unreliable information. According to the Department of
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Justice trial, GPU's lawyers stated that Mr. Harrison found 2
all 30 unrecorded water additions identified by the NRC as 3
not having occurred.
4 My objection is that this Stier report and this 5
MPR report on which it is based are not reliable 6
information.
The NRC found Mr. Stier's investigation, for 7
instance, of the harassment of the engineers as unreliable 8
information --
9 JUDGE KELLEY:
Right now, we are not talking 10 about the Stier report.
We are just talking about 11 D.
H.
Harrison.
12 MS.-AAMODT:
Harrison.
I find this to be 13 unreliable information.
This was information -- evidence 14 that was simply developed to defend the Licensoo in the 15 Department of Justice investigation, and I find it to be 16 biased information and not necessary information.
If the 17 Staff can object to some witnesses on the basis that they 18 are repeating -- for instance, Mr. Chung, that he is redoing 19
-- that this work has been redone, and therefore, we don't 20 need Mr. Chung, then the same thing could apply to 21 Mr. Harrison.
That work was done by the Faegre and Benson 22 investigators.
It has been done by the NRC investigators, 23 who followed Mr. Chung, so why do we need Mr. Harrison?
24 JUDGE KELLEY:
Well, one point that you make, and
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25 I have no opinion on Mr. Harrison's work one way or the ACE-FEDERAL REPORTERS, INC.
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other, but assume that a party says, well, this particular 2
investigator was biased, I assume that there are going to 3
have to be some limits on the number of questions that we 4
will put to witnesses that effectually go to impeachment, or 5
we would be in this forever, but I assume there will be some 6
room for that kind of questioning.
Normally, bias isn't 7
enough to call a witness is really what I am saying.
8 Should it be in this case?
9 MS. AAMODT:
I would say it goes further than 10 that.
There is unreliable information here, because the 11 Department of Justice was able to prevail in that hearing on 12 information that refuted the MPR information, and so we have x
13 that record of the U.S.
Government having found the MPR v
14 information -- evidence to be unreliable.
15 JUDGE KELLEY:
I used to work for the Department 16 of Justice, and they are sometimes wrong too.
Should we 17 assume that whatever the Justice Department found is graven 18 in stone somehow?
19 MS. AAMODT:
I think that is a rather -- this 20 isn't just a little difference in a finding.
MPH found all 21 30 unrecorded water additions as not having occurred.
Now 22 the NRC finds that these water additions did occur, and this 23 is one of the reasons that we are here today.
It is because 24 there were these water additions that were made and were not
^('
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falsify the leak rate reports.
2 So I think just on that alone, I don't see how we 3
can take such an incredible witness into this hearing and 4
be willing to accept a witness who provides that incredible 5
a testimony.
6 JUDGE KELLEY:
Okay.
Thank you.
7 Moving to Mr. Voigt's proposed Item 7, which 8
other parties also speak to, just happened to come to 9
Mr. Voigt's point first.
You object to the inclusion of the 10 GPU Assessment Panel report.
11 We have a similar objection, I believe, from 12 Mr. Blake.
The Aamodts have an objection to the GPU 13 Assessment Report, I believe, and that the thrust of this 14 objection from at least one party, Mr. Blake, is that it 15 doesn't represent any new information beyond what we've 16 I already got,.because that particular panel simply built on 17 the Stier report.
18 I may have oversimplified a little bit, but that 19 is the thrust of it.
20 Does any garty believe that this document should 21 be included in this record?
Are there any supporters of 22 this document?
23 MR. BURNS:
I am, your Honor.
24 JUDGE KELLEY:
Okay.
25 MR. BURNS:
It is my understanding that that ACE FEDERAL REPORTERS, INC.
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~
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report relied heavily on the Stier report.
I could be 2
incorrect, but that is my understanding.
This would tie 3
into what I said just a few minutes ago about Mr. Stier, as 4
it relates to my client.
I am not pretending to speak to 5
any of the other parties' positions in this case, only my 6
client's.
But as far as my client is concerned, 7
Mr. Merbine, I would be in favor of that portion of the 8
assessment panel report that relates specifically to him.
9 JUDGE KELLEY:
Does any other party object to the 10 inclusion of that portion of the assessment panel relating 11 only to Mr. Herbine?
12 MR. VOIGT:
No, sir.
13 MS. AAMODT:
I would reserve on that.
I would a
14 have to look at that.
I am not as well acquainted with E
15 that, the GPU Assessment Panel report on Mr. Herbine.
16 JUDGE KELLEY:
I suppose we might give you a 17 brief opportunity to look at it.
I noted in your pleading 18 that you refer to your objections as prelirinary 19 objections.
That troubles us a little bit.
We are trying 20 to get some things decided here and get ourselves a record, 21 so we can move ahead.
It isn't that we're going to keep 22 arguing these points throughout the case.
It may be these f
23' are voluminous thinos in some cases and perhaps part way 24 through the case, we will come across something that is
)
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some further argument.
But by and large, we are trying to 2
establish from among the voluminous documents on this 3
subject what is the basic data base.
j 4
So in this instance, if you want to give some 5
further consideration to whether you object to the Herbine 6
section of the GPU Assessment report, we can give you some 7
time to do that, but generally speaking, we do intend to 8
resolve these issues, a number of issues that come out of 9
this prehearing, there is going to be an order and ruling 10 from.
They are either going to be in or they are going to 11 be out, and then we will go on.
12 MS. AAMODT:
I understand that, your Honor.
My
~
13 use of the word " preliminary" was to indicate that we do not s
14 have some of the documents.
15 JUDGE KELLEY:
Of course.
That is all that was 16 intended.
We made it clear, I think, that objections are 17 still to be heard on documents not yet available.
18 19 20 21 22 23 24
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JUDGE KELLEY:
Item 8 in the Voigt paper speaks 2
of the Capra memorandum.
The listing that we gave this in 3
our order of 3/26 was, I believe, the literal title of this 4
memorandum, and one might conclude that that is the Chung 5
report.
Mr. Goldberg advised me that there are various 6
Chung reports.
7 Mr. Blake points out that there is a Chung report 8
in the Stier report.
Maybe you can shed some light on this, 9
Mr. Goldberg.
10 MR. GOLDBERG:
As difficult it is to shed light 11 on the Chung reports, I will try.
12 There are a number of Chung reports.
This Item 8 13 on the Board's March 26th order is a an accurate description 14 of the memorandum from Capra to Van Vliet, dated October 15 18.
It was actually entitled TMI 2 Leak Rate Analysis 16 Data 'Chung Reoort.'"
What Mr. Voigt says about Item 8 is 17 correct.
It is, 'or the most part, just a compilation of 18 various charts and graphs and logs and analyses or data, 19 rather.
It is not a report, in the sense of a written 20 narrative description of what took place and what findings 21 and conclusions were reached, based on perceived facts.
It 22 was included on the list, I think, for completion purposes 23 and with an asterisk indicating that the Board didn't 24 indicate that it was of primary significance for the
^'
25 resolution of the issue.
I don't think that it adds g
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anything to the record to include that, because all of the 2
logs and strip charts and other data that is relied on by 3
the various investigators to support their conclusions are 4
attachments to their reports.
So that is Item 8.
What 5
Mr. Voigt says about it is correct.
6 There are other Chung reports, however.
7 Dr. Chung did do an analysis of possible TMI 1 leak rate 8
data falsification, and that report was described in NUREG 9
06870 Supplement 5, Section 4, and I think was the subject 10 of a Board notification in the TMI 1 restart proceeding; 11 however, its subject was TMI 1,
leak rate testing, not TMI 2 12 leak rate testing.
13 Dr. Chung also did do other work in connection 14 with TMI 2 leak rate testing.
In particular, he assisted 15 the Department of Justice grand jury effort and did write up 16 l a report or a portion of a report which is an attachment to R
17 the Stier report, and it is identified as Item 1 on page 6 18 of Mr. Voigt's response to Part 2(c) of the Board's March 26 19 memorandum and order.
20 I have not been able to determine what that 21 particular portion of a report was intended to be a part 22 of.
Looking at it, it starts out with Section 7, and it 23 stated "May 26, 1983."
Dr. Chung has not been available to 24 Jor the past couple of days when I tried to find out, and I 25 haven't found anyone else who can shed any light on what
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the purpose of that portion of the report was and what it 2
eas intended to be a part of.
I will continue my effort to 3
find out what that is all about, but it obviously is 4
something distinct from Item 8 on the Board's Attachment B 5
from the March 26th order.
6 Regardless of what it was intended to be a part 7
of, it is not something necessary to the Staff position on 8
what took place at TML 2 betore the accident, in connection 9
with leak rate testing and who was implicated in any 10 wrongdoing in cor.nection with leak rate testing.
11 Everything that the Staff will be relying on and 12 everything that OI will be relying on to support their 13 reports will be either attachments to those reports or will 14 be provided to the parties at the same time the reports are 15 provided.
16 JUDGE KELLEY:
In any case, Mr. Voigt says Item 8 17 is of no use, and you agree; right?
18 MR. GOLDBERG:
Yes.
19 JUDGE KELLEY:
Does anybody want to keep Item 8 20 for some reason, or should that be dropped from the list?
21 MS. AAMODT:
I think Mr. Chung should appear as a 22 witness, and if he feels that he needs to refer to something 23 in Item 8, at that time, any portion of the Capra memorandum 24 could be mad; a portion of the record.
25 JUDGE KELLEY:
I think that might be a ACE-FEDERAL REPORTERS, INC.
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possibility at a later date.
For an initial record though, 2
wr. don' t have any reason to keep it, do we?
3 MS. AAMODT:
Not if we can't understand it or 4
read it.
5 JUDGE KELLEY:
Right.
Good enough reason to drop 6
it.
7 MS. AAMODT:
But I don't know, not being able to 8
understand it, how can we decide --
9 JUDGE KELLEY:
I think you made your point.
I 10 don't think we are inconsistent on it.
11 MR. VOIGT:
Let me respond very briefly to what 12 Mr. Goldberg just said about Dr. Chung's 1983 report.
13 JUDGE KELLEY:
Which item is that?
14 MR. VOIGT:
Number 1 on page 6.
15 JUDGE KELLEY:
Okay.
And that is in the Stier 16 report?
l 17 MR. VOIGT:
That is correct.
18 I gather from what Mr. Goldberg is saying, is 19 Dr. Chung's report now represents what is called within the 20 agency a differing professional opinion, in the sense that 21 he reached certain in 1983 that the Staff no longer k
22 supports, and I think it is important for the Board to know 23 what the differing professional opinions among the Staff 24 are.
25 So I would like to see it come in anyhow.
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MR. GOLDBERG:
I don' t thing Mr. -Voigt is correct 2
in characterizing it as different professional opinion, 3
because that is a term of art within the Agency and is not, 4
to my knowledge, a differing professional opinion.
The 5
analysis that was done subsequent to Dr. Chung was, I think, 6
more sophisticated, based on.more information, and in some 7
instances, there may very well be differences between the 8
results of Dr. Chung's analysis and the results of the 9
subsequent analysis that was done by the Staff.
10 Again, I think it is the case that we are going 11 to present the Staff position on issues and everything that 12 supports that position.
To the extent. that anyone can 13 identify some other information which is not consistent with 14 the Staff's position, they are free to point that out to the 15 Board, and if the Board determines there was a need to get-16 that information in the record, then the Board will so 17 rule.
But at this point, when we are discussing a Phase 1-A 18 on the core technical background needed to understand the 19 allegations and the findings and conclusions concerning 20 those allegations, Dr. Chung's work is not necessary.
21 JUDGE KELLEY:
Okay.
22 Any other comments?
On page 6, Mr. Voig t --
23 forgive me if you've covered this -- number 10, TMI 2 24 computer log, can you offer any further comments on that?
25 MR. VOIGT:
Surely.
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JUDGE KELLEY:
It is not Stier, I see, or 2
apparently it is not.
3 MR. VOIGT:
Yes.
It is a potentially significant 4
omission on Mr. Stier's part.
5 Item 9 reflects some alteration in the computer 6
program which was made on October 18.
That was the day that 7
Mr. Haverkamp conducted his inspection.
You will hear, 8
probably, some disputed testimony about who said what to 9
whom concerning that alteration of the computer program.
On 10 October 27, the computer program was again altered to remove 11 the alteration that was made on the 18th, and that, we 12 think, has some significance also.
13 I don' t know why Stier didn' t focus on it, but he a
14 didn't, but we think if you are going to have the one, you 15 certainly ought to have the other.
We think that they are 16 both important.
17 Thank you.
18 JUDGE KELLEY:
Okay.
Excuse us just a moment.
19 (The Board conferred.)
20 JUDGE KELLEY:
Off the record.
21 (Discussion off the record, )
22 (Whereupon, at 12 noon, the prehearing conference 23 was recessed, to reconvene a t 12:30 p.m., this same day.)
24
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AFTERNOON SESSION (1:40 p.m.)
2 JUDGE KELLEY:
We are back on the record.
3 We'd like to turn next -- I think we can turn 4
briefly to the second numerous employees filing.
This one 5
is in response to Part 2( b) of our memorandmn.
It had to 6
do, essentially, with prior statement's.
7 We asked Mr. Voigt and his colleague to have a go 8
at a master list compilation.
The suggestion, I think, was 9
made last time.
The Stier report had a pretty extensive 10 listing.
It is Mr. Voigt's proposal that we use as a master 11 list that list, bearing in mind, of course, there may be 12 additional statements coming out of these OI NRR reports.
13 One question, Mr. Voigt, top of page 2, the first 14 sentence, we were a bit unclear on that.
Reading the Stier 15 report exclude several statements contained in Appendix C of 16 the Stier report.
This sounds like it excludes it or 17 includes them.
I wasn't sure what that meant.
18 MR. VOIGT:
Well, I reckon that the capital "R" 19 in the second line should be a little "r,"
if that would 20 help.
And as the footnote indicates, there was a separate 21 Stier report on TMI 1.
We are simply pointing out that 22 there are some statements in that separate report that do 23 have or cut have a bearing on TMI 7, but we are not, at this 24 time, proposing to include them.
)
25 JUDGE KELLEY:
Okay.
Let me make a statement f
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that I think we made before.
I hope it was at least 2
implied.
The Board doesn' t, at this time, have any problem 3
with that as a list, with the understanding that there will 4
be others coming later in the other reports.
5 We see this, though, as a list of party proposed 6
statements which have not taken any independent effort on 7
list compilation ef fort here, and we don't propose to list 8
now statements that we may want to put in as evidence or as 9
a basis of questioning.
We can say that should we decide to 10 do that, you would certainly have advance notice of that 11 fact, so that if a particular individual, for example, one 12 of the employees, comes in to testify, and we have looked at 13 prior statements we think are significant and we want to ask i
%/'
14 the person about, we would advise counsel in advance, of our 15 intention to do so, but we reserve the right, if you will, 16 to do that at some later time.
17 MR. MAUPIN:
Mr. Chairman, may I ask a question 18 at this point?
19 JUDGE KELLEY:
Yes.
20 MR. MAUPIN:
I construed your earlier request 21 that we comment on the list of documents and make proposed 22 additions --
23 JUDGE KELLEY:
Yes.
24 MR. MAUPIN:
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on solely as a basis, for example, for questioning the 2
reliability of a particular witness.
3 I had assumed, for example, a prior statement 4
would not be treated as a document for that purpose.
5 So let me tell you what I had contemplated as 6
coming about in practice.
If a witness was going to take 7
the stand, and I had read his prefiled testimony, and based 8
on that prefiled testimony, there were questions that I 9
wanted you to ask him, and one of those questions, for 10 questions designed to test the reliability, for example, of 11 his memory, and we wanted to use prior statements for that 12 purpose, given that that might occur, I did not understand 13 that I was to name all of the prior statements in response 14 to your March 26th order that might be required for that 15 purpose.
16 JUDGE KELLEY:
Well, we may not have been 100 17 percent clear.
I think it was at least my understanding 18 that we did want that.
19 Mr. Voigt points out, for example, that we don't 20 even know who some witnesses are yet, out of the OI 21 investigation.
So it is premature, of course, to ask you 22 about using statements made by them as to the people who are 23 now on the table as witnesses.
It was our thought that we 24 would get both.
I am not suggesting it is too late to amend
(
25 that, but that, at least, was my understanding.
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MR. VOIGT:
As I understand Part 2(d) of your 2
March 26th order, Mr. Maupin has until April 30th to respond 3
to this list.
4 JUDGE KELLEY:
That is correct, and that wasn' t a 5
deadline, so much as an expectation date, if I may use that 6
phrase, but it was, I think, our understanding that we 7
essentially want to know now, to the extent that is 8
reasonable to ask what prior statements do you intend to use 9
in the case.
That would include impeachment as well as 10 direct evidence.
We can discuss in a minute what the time 11 frame ought to be, but that is what we would like to get.
12 On the general proposition, that what I will call the Stier 13 list, whether that should be a master list.
14 Do parties have any problem with that?
Subject 15 again, to the later OI fix coming out?
16 (No response.)
17 JUDGE KELLEY:
Seeing no hands in the air, okay.
18 Mr. Voigt also state some propositions at page 3, 19 ground rules, that do well for the use of prior statements, 20 and we have had some suggests to that ef fect before.
We 21 indicated in our March 26th order that we may want to defer 22 ground rule announcements, simply because these prior 23 statements come up in a lot of different concepts and they 24 are used for a lot of different purposes, and for us to 25 attempt to write a sort of separate code on prior statements ACE FEDERAL REPORTERS, INC.
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before we even get into hearing may not be a sound 2
approach.
3 On the other hand, I suppose we could ' consider 4
'some very general guidance type statements, if that is 5
useful.
6 Do the parties -- you can respond.
Do you feel 7
it will be necessary or useful for us to give some guidance 8
at this point about what we think about use of prior 9
statements, or do you think we could just safely wait and 10 rule or overrule as these matters arise?
11 Mr. Voigt has put forward certains propositions 12 there.
Any thoughts?
13 MR. BLAKE:
I had hope, coming into this affair, 14 that there might be more agreement than there appears to be 15 at this point on the use of prior statements, in part, with 16 the practical view of how long we were going to spend in the 17 hearing and now long it was going to take and whether or not 18 we would need to have as witnesses here a large number of 19 people who might very well be able to avoid an appearance, 20 simply by the use of prior statements.
21 There are a large number of people who would at 22 least perceive the Board's initial notice of this 23 proceeding, if we ignore every past statement and simply 24 have some lesser number -- start with some lessor number of 25 people as witnesses.
It is not clear to me how we have a ACE-FEDERAL REPORTERS, INC.
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complete record of -- I am more interested in the lack of 2
involvement than I am in the degree of involvement, 3
involvement by people, unless we are starting with the 4
ground rule that if we don't hear from anybody in the course 5
of this proceeding, and if that individual's name doesn' t 6
come up in the course of this proceeding, that is it.
7 Now maybe that is the ground rule we are entering 8
into this with, and there are going to be some number of 9
witnesses who come, and it is only those witnesses who come, 10 who are going to be the subject, potentially, of any 11 downside.
12 Now if that is the ground rule, just so we all 13 understand it here.
I am not sure we do.
I am not sure 14 we've talked this through or really thought it through.
15 That is really my basic trouble with excluding 16 all prior statements, and I don't know how to get around it, 17 unless we are talking about an awful lot of people coming in 18 as witnesses, who I am not really sure are necessary.
19 JUDGE KELLEY:
I don't understand that we've got 20 a proposition f rom anybody or that all prior statements be 21 excluded.
22 Mr. Voigt has certain ground rules that may have 23 the ef fect of excluding quite a number of prior statements.
24 I don't really have an assessment of that, but the Board 25 hasn't taken that position.
I hesitate to expand much ACE-FEDERAL REPORTERS, INC.
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beyond that, except to suggest that neither have we adoptri 2
a ground rule which says only those people who came into the 3
hearing will be -- they are the only ones who will be 4
addressed.
5 I would think that if the hearing generated 6
evidence that somebody who did not show up should have been 7
in here, may be worthy in some way, we might subpoena such a 8
person.
We certainly wouldn't just say, well -- there's a 9
premium on stayi.ig out, it seems to me, if that is the 10 rule.
11 MR. BLAKE:
That's right.
12 JUDGE KELLEY:
I wouldn't think it would be the 13 rule.
Q)
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14 15 16 17 18 19 20 21 22 23 24
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The parties can propose a list of two prior 2
statements,.22 or 222.
It is up to them, 3
What I suggested e. while ago, the Board may ver 4
well make use of prior statements.
I frankly think we will, 5
and we are just trying to get a handle on what the 6
dimensions of the thing are.
What are we doing or not 7
doing, that you think we should do or not do, in this 8
regard?
9 MR. BLAKE:
I thought you asked whether or not 10
-- our views on use of prior statements.
The only one I 11 really know that has been put on the table has been 12 Mr. Voigt's, which pretty strenuously engaged in prior
()
13 statements.
I just wanted to state a different view.
14 JUDGE KELLEY:
I am sorry.
I think the narrower 15 question I was putting was, what do you think of Stier 16 Volume 3 list, as though that is a master'11st, not so much 17 the broader question of, do you agree or disagree with 18 Mr. Voigt?
19 MR. BLAKE:
I think that is a starting point that 20 I would start with, as well.
21 JUDGE KELLEY:
Are there other categories of 22 statements, to your knowledge, that aren't in that list that 23 ought to be included?
24 MR. BLAKE:
No.
)
25 JUDGE KELLEY:
Okay.
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Does anybody else want.to' comment on the use of 2
that list?
3 Ms. Aamodt?
4 MS. AAMODT:
I don't know whether this is going 5
to be helpful or not, but I envision this hearing as 6
investigating the individuals who could possibly have had 7
any involvement in the leak rate falsification, and I don't 8
really understand how that investigation can be carried on 9
on the basis of what has gone before, as far as depositions 10 go, except insofar as giving some direction for questioning 11 by this Board, but I really don't understand why, for 12 instance, all of the things that we are doing now and
()
13 attempting to understand what leak rate testing was about, 14 why that would even be neessary if we now are, you know, 15 accepting conclusion of prior investigators, for. instance, 16 that GPU Assessment panel and the Stier report.
I don't 17 understand that, and if we are not going to actually see 18 these individuals and question them directly here, this 19 Board is going to question them directly here, I just donm' t 20 understand then what the purpose of the hearing is.
21 JUDGE KELLEY:
Well, in the first place, I don't 22 think we are discussing with Mr. Voigt, whether we are p
23 accepting conclusions or considering conclusions.
In my 24 mind, there is a difference.
25 We do have a number of people who have ACE-FEDERAL REPORTERS, INC.
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petitioned, they.are going to come here, they'are going to
~
2 testify, and.we think the question of prior statements,'to 3
give you a hypothetical, and it.is purely a hypothetical'.
4' If we could have a witness come in saying I didn't falsify
(
.)
5
_that-leak rate, and my boss'is a stickler for the rules, and:
6 he could have had a prior statement five years ago saying he 7
did falsify and his boss told him to do it.
I 8
Now if-we are an investigator, shouldn't we.say 9
why didn't you say that five years ago?
10 MS. AAMODT:
Absolutely.
I 11 JUDGE KELLEY:
Okay.
l 12 MS. AAMODT:
Okay.
I don't think, then, it i
k 13 should be limited to just those taken under oath, and so
'14 forth.
I think any evidence that has been developed ---
15 JUDGE KELLEY:
That is a point of argument.
16 Mr. Voigt is proposing that as a ground rulo_for puso of y
17 prior statements, and I gather you disagree.
3 t
18 MS. AAMODT:
I disagree on that.
I-think any 19 -
evidence which would cause us to question, to pose a
- f 20 question of a witness, we should be allowed to ask the 21 witness, why did you say that?
What was that about?
I 22 don't think it necessarily needs to be made under oath.
23 JUDGE KELLEY:
Let me ask you once more, would 24 the parties like the Board to try their hand at some 25 guidelines in this area without getting too specific, so you ACE-FEDERAL REPORTERS, INC.
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have some notion of what kinds of prior statements we would 2
consider and for what purpose, or would you rather just wait 3
for the hearing and see what happens?
And there is some 4
reasons for doing the latter, it seems_to me, but do you 5
think it is a good idea?
We could try to do'that, I 6
suppose.
7 Mr. Voigt?
8 MR. VOIGT:
I am prepared to wait for the 9
hearing.
I think my position has been clearly stated in at 10 least two pleadings.
I think the Board understands my 11 position.
12 JUDGE KELLEY:
Yes.
()
13 MR. VOIGT:
And I am quite content'to wait and
-14 see what happens.
It may be that it is going to be much 157 less of a problem than some of us imagine.
16 JUDGE KELLEY:
Okay.
Ms. Aamodt, what do you 17 think?
18 Should we try to set some rules now, guidelines, 19 or should we wait for the hearing?
20 MS. AAMODT:
I don't know.
Looking at the Stier 21 report, I find the prior statements are so conflicting, and 22 this is one of the reasons that we have opposed them, 23 multiple representation by the attorneys that are here, 24_
because the people that they are representing, I have looked 25 at their names, looked at their list.
They have provided ACE-FEDERAL REPORTERS, INC.
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the testimony, brought statements that are highly 2
conflicting, and I made a list of a number of examples of 3
that.
4 So I don't know.
Somebody is not telling the 5
truth.
I don't know what value these statements are.
6 JUDGE KELLEY:
One of the reasons for trying to 7
do this would be to give you some guidance in advance about 8
what we would do.
There is no point in your finding a 9
conflicting statement.
Let's say you think it is 10 conflicting, and so you write up.a bunch of questions and 11 come into the hearing, and lo and behold, somebody objects, 12 '
and you don't get to ask the questions.
-( )
13 If you want some guidance in advance, it might 2
14 channel-your efforts, I suppose.
15 MS. AAMODT:
I would accept that.
16 JUDGE KELLEY:
But it is difficult, as I said, t
17 for the Board, before they've heard a witness, before 18 (they've seen the case develop, to make a lot of abstracts 19 ruling on the use of prior statements.
I think it is a b0 tough call.
21 So we can weigh it, and based on -- this is 22 coming at you without a lot of discussion or prior 23 consideration by us, that is true.
24
,Do you think you would favor us trying to write 25 some guidelines on prior statements or not?
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MS. AAMODT:
I think there could be some.
I
%d 2
think that would be an advantage for you to do that.
I'just 3
don't know what we are going to do with prior statements 4
where someone denies --
5 JUDGE KELLEY:
That might tell you, if we-did 6
it, so you don't know what we are going to do.
.Maybe we can 7
tell you something, but not everything.
8 MS. AAMODT:
Are we are going to arrive at 9
whether this person is just self-serving in his denial or 10' whether his denial is, indeed, true.
I don't understand how i-11 we will do that other than to use -- well, maybe to use all.
12 the evidence that we have.
But I do think that prior
-( )
13 statements might be helpful in directing us towards what 14 questions would be appropriate to ask, for us to see what 15 kind of a problem we are going to have in resolving 16 conflicting testimony.
17 JUDGE KELLEY:
Mr. Blake, any thought on whether 18 the Board should tackle this now, in terms of principles or 19 guidelines.
20 MR. BLAKE:
No, I am prepared to go forward to 21 the hearing and see whether or not it works without --
22 JUDGE KELLEY:
Case by case?
23 MR. BLAKE:
Sure.
24 JUDGE KELLEY:
Mr. Maupin?
(
25 MR. MAUPIN:
I agree with that.
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JUDGE KELLEY:
Okay.
Thank you.
(_/
2 on the question, then,-of-parties other than the 3
numerous employees informing us of which prior statements, 4
at least statements of the so-called Stier list they contemplate using, we had said the 30th.
We could give a
- S 6
little more time than that, if.that is desirable.
7 Could you file those statements in the next 8
week, let's say?
Lists they are, really:
What time would 9
you want?
10 MR. BURNS:
I am.not sure I could comply that 11 quickly.
12 JUDGE KELLEY:
How much time would you like to
()
13 have?
14 MR. BURNS:
The problem, I haven't really had a 15 chance to consult.
I don't know how many -- I haven't seen 16 a lot of these statements.
We were starting to gear up to 17 look through these to abstract and to see what we might be 18 interested in, and I am not sure we can get that done in a 19 week.
20 JUDGE KELLEY:
How much time would you like to 21 have?
22 MR. BURNS:
15 days.
23 JUDGE KELLEY:
What does that turn out to be?
24 MR. BLAKE:
May 9th, which is a Friday.
25 JUDGE KELLEY:
Is Friday, May 9th, satisfactory i
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to all parties for the numerous employees for filing their 2
designations and prior statements they intend to use,-again, 3
with the understanding that there may be supplements to this-4 when the other reports become available?
5 MS. AAMODT:
Judge, I feel that either we should 6
not have a selection on prior statements, either, if we are 7
going to use them that-we look at all of them, or we do not 8
use them.
9 I think that it is not right for them, for these 10 lawyers now to just simply select among the ones that are 11 most pleasing to them at the present time.
12 JUDGE KELLEY:
That is what lawyers do.
()
13 MS. AAMODT:
We have no reason to believe that 14 some of these statements are not false statements and if 15 they conflict with another statement, why can't we-have the 16 privilege of facing that witness with that statement that 17 conflicts and that maybe isn't as acceptable right now.
18 I think if we are going to have them, we should 19 have all of them, and.we should be able to face the witness 20 with, why was this testimony -- did it conflict with later 21 testimony?
22 JUDGE KELLEY:
Are you saying you should be able 23 to come into the hearing with every prior statement ever 24 having to do with leak rates without any notice to anybody
()
25 and start asking questions about them to witnesses?
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- MS.-AAMODT:
lI think we should certainly-have 2
these' prior. statements organized in such a way by individual
'3 that we can look at them.and look at them together.
These 4
are all the-prior statements of Mr. Herbine on this matter, 5
- and.we can then look at'them and see what questions left
'6 remain to be' asked of Mr. Herbine.
7 I think that_would be the way to do it rather 8
than to come in and try to then upset the statement that has 9
been entered on behalf of Mr. Herbine.
I think it would be-10 better to look at everything he said, everything Mr. Miller 11-said, everything Mr. Floyd has said, and if they are put-all
-12 in one place, it may become quite evidence what particular
()
13 questions would be appropriate and how the truth can be 14 arrived at most quickly.
15 JUDGE KELLEY:
Well, Ms. Aamodt, I guess if we 1
16 had a dozen statements involved here for the whole case, 17 then maybe the Board would just read all 12, and we would 18 take that approach.
19 I don't know how many statements there are in 20 this case, but there are an awful lot.
We have said that 21 the Board intends to review the statements, and we may very 22 well decide we want to ask questions about particular ones.
23 In addition, we are simply saying to the parties, which ones 24 do you want to bring to the attention of the Board?
I don't 25 think it is feasible for us to try to -- I am not quite sure ACE-FEDERAL REPORTERS, INC.
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what you are suggesting really.
If we had all these NJ 2
statements stacked up-on the table, I am not quite sure what 3
we would do with them.
4 MS. AAMODT:
If they were stacked up, and they 5
were not organized in some way, they would be quite 6
difficult to use, but I think if they were organized 7
chronologically by the person who was deposed --
8 JUDGE KELLEY:
It sounds like you are asking the
.9 Board to go through every single statement having to do with 10 leak rates in this case on the record.
11 MS. AAMODT:
I think it would be quite useful in 12 framing questions to the witnesses.
()
13 JUDGE KELLEY:
That is just impossible, 14 Ms. Aamodt.
We'are not going to do that, but we are saying 15 to you.is, you pick out the ones that you think should be 16 brought before the Board, and we will make a decision.
17 But for the Board to go through statement 1 to 18 statement 300, or whatever it is, on top of everything else 19 in the case, is'just not a practical undertaking for us.
20 This is your opportunity to extract from these 21 various now public statements which you think ought to come 22 out.
23 MS. AAMODT:
It is a tremendous undertaking for a 24 party simply to locate these statements in the Public (q
_/
25 Document Room in the organization that they are in right ACE-FEDERAL REPORTERS, INC.
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now.
2 Certainly, the Board doesn't have to read every 3
word.
I think the parties are here~to. assist the Board.
4 JUDGE KELLEY:
Mrs. Aamodt, we are just flat not 5'
going to do that.
Now you can go and read these statements 6
and propose what you want to propose, but the idea that we 7
would sit down and read every single statement sort of with 8
the parties and cull out pieces of interest is not within 9
our capabilities.
If that is your submission, it is just 10 denied.
We are not going to do that.
11-MS. AAMODT:
How then,_may I ask, can you decide 12 which statements are the preferable statements.
()
13 JUDGE KELLEY:
You've been in a lot of litigation 14 in the NRC.
You have parties representing different points 15 of view and the idea is that when the parties all put their 16 cases in, some approximation of reality will emerge, along 17 with the Board's input.
But I dare say I can't imagine 18 you've been in a case where somebody has plowed through page 19 by page several hundred prior statements, and we are not 20 going to start here.
We can't do it.
21 So this is your chance to designate which of I-22 these statements you think should be used.
23 MS. AAMODT:
And how long do we have to do that?
24 JUDGE KELLEY:
How about May 9th?
25 MS. AAMODT:
All right.
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JUDGE KELLEY :
Mr. Maupin.
You essentially had 2
no objections there?
I've got your pleading, but we have no 3
questions about it; correct?
4 MR. MAUPIN:
You're talking about the document 5
that said we had no objections to the list of proposed 6
documents and no additions?
7 JUDGE KELLEY:
Exactly.
I 8
MR. MAUPIN:
I do have one observation.
I think 9
the discussion we had earlier this morning, principally with 10 Mr. Voigt, my comments will go to the question of whether 11 the Board ought to accept into the record documents that 12 state conclusions about culpability.
(_3) 13 JUDGE KELLEY:
All right.
14 MR. MAUPIN:
I suppose my assumption has been --
15 let me back up and begin by observing that while each of us 16 has had an opportunity now to suggest additional documents 17 for inclusion in the initial record.
18 There has been no opportunity, aside from this 19 morning, to comment on each others' suggestions.
20 JUDGE KELLEY:
That is correct.
One point we wer 21 going to make is, if we can get these comments made -- now 22 Mrs. Aamodt wanted a chance to review the Herbine case of 23 the GPU Assessment report, and we said okay.
24 To the extent, though, that we can get this 25 commenting processing done, we would like to.
If you ACE-FEDERAL REPORTERS, INC.
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entertain that request.
3 MR. MAUPIN:
Let me simply make this point.
It 4
seems to me there are a_ wide range of ways in which the 5
Board can proceed, but I suppose two obvious ways would be 6
these.
One -- and I must say candidly I have assumed from 7
the outset that this is.the approach you would take -- is to 8
put into the. record, to use.the Stier report as an example, 9
the entire Stier report, but to approach that report with 10 discernment and to recognize the difference of obtaining 11 conclusions on technical matters or whatever with an eye to 12 the end that you would not simply assume blindly the
()
13 correctness of any conclusion, but that you would probe 14 and explore the basis of that, the first way.
15 The second way to proceed would be to carve out,-
16 to use the company's expression they use in their responses,
- l'7 to carve out those conclusory portions of documents.
I 18 simply want to say that if you were to elect to take that 19 second. approach, then there might be some carving I would 20 want you to perform on some of the documents that were 21 recommended as additions.
In particular, one of those 22 documents is the NRC Supplement 5, NUREG 0680, Supplement 23 5, where they are conclusory statements, and I am simply 24 saying, if you are going to carve them out, carve them out
(
25 across-the-board, and if you are going to accept them all ACE-FEDERAL REPORTERS, INC.
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1 for whatever weight you'will ultimately decide to give them, 2
then I have no problem with that.
3 JUDGE KELLEY:
I'think Mr. Blake's point, 4
paragraph where he said we didn't need to carve, had not to 5
do with something conclusory, but with something 6
irrelevant, it his view.
7 MR. MAUPIN:
Forget that I said or made any 8
reference -- I was simply using that as a word which I 9
thought sort of crystallized the idea.
10 JUDGE KELLEY:
Are you suggesting -- I guess my.
11 feeling has been that the conclusory reports, as they have 12 been called, part, at least, are pretty hard to carve on, in 13 the sense that facts and opinions, and all that, get 14 intermixed so much, that it is really not feasible to do 15 that.
It may be that if one could pick out obvious parts of 16 reports, small identifiable parts, and say, okay, that's all 17 conclusions, we'll drop that, that might be more feasible, 18 but it's not been my impression that that applies to the 19 portions we have been talking about.
20 MR. MAUPIN:
Carving would be difficult.
It 21 would be more difficult for some of us than for others, I 22 think.
If you were of a mind to take the approach suggested 23 by numerous employees, then I would be happy to participate O
24 in that in any way I could.
I am simply saying that if you 25 do take that, then we ought to apply it to the documents ACE-FEDERAL REPORTERS, INC.
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that numerous employees have offered as additional documents 2
to the list, and if we don't take that approach, then I am 3
perfectly willing to have their additional documents made 4
part of the initial record, along with the entire Stier 5
report and the rest of the documents you suggest.
6 JUDGE KELLEY:
Okay.
7 MR. MAUPIN:
Except the ones we've already agreed 8
this morning ought to be kept out, because they are 9
repetitive or don't aid in the --
10 JUDGE KELLEY:
All right.
11 MR. BURNS:
Continuing Mr. Maupin's statement, I 12 share a similar concern as to NUREG 0680 Section 5 report t
)
k/
13 as my client, Mr. Herbein.
I draw a distinction between 14 the conclusions, and I frankly, your Honor, found them to be 15 fairly sweeping, virtually no supportive evidence in the 16 body of the report.
17 I distinguished that from Mr. Stier's report.
My 18 understanding of the NUREG report was that there were 19 virtually no interviews or independent investigation, at 20 least to my client, and I can tell you my client was not 21 interviewed at all or talked to in any way.
All I saw in 22 that report was the reliance on a one-paragraph statement 23 out of a multipage press release issues by the United States t
l 24 Attorney at the plea bargain sentencing.
And I think I do
[ '\\
25 clearly draw a distinction as to the conclusions relative ACE-FEDERAL REPORTERS, INC.
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to Jack Herbine in the NUREG report, as opposed to the Stier 2
report in the comments I have heard today, and I would 3
object to those.
4 MR. BLAKE:
Let me add my objection, and what I 5
am looking at and what Mr. Maupin and Burns have been 6
looking at, it appears on page 6 of Mr. Voigt's draft 7
submittal.
It is Item No. 2.
Specifically, they both refer 8
to Section 13.2, which -- out of that NUREG, which deals 9
with Mr. Coon's and Mr. Diekamp and Mr. Clark, all of which 10 have been, by the Commission, specifically excluded from the 11 consideration in the proceeding, along with other 12 individuals.
O'\\ J 13 I think.this is not a proper document to be 14 included in the record of this proceeding, certainly not as 15 a starting document for technical understanding.
16 17 18 19 20 21 22 23 24
('~)h
(_
25 ACE-FEDERAL REPORTERS, INC.
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I also would object to Section number 4 of that 1
2 NUREG, which deals with TMI-1 as entitled, and deals with 3
TMI-1 Leak Rate Testing.
4 I would add my observation that I am surprised 5
with respect to Sections 5.1 and 5.2, which have conclusions 6
about leak rate testing, which strike me as inconsistent t
7 with the numerous employees' positions about conclusions in 8
other documents.
But, I don't have an objection to it.
9 JUDGE KELLEY:
All right.
10 Mr. Goldberg?
11 MR. GOLDBERG:
Only that I basically agree with l
12 the concerns expressed by Mr. Maupin, Mr. Burns and 13 Mr. Blake.
What they say is, I think, a valid point.
14 Section 4 of NUREG 0687.5 is not about TMI-2 i
15 leakrate testing.
We have heard Mr. Voigt's argument as to
-16 why he thinks TMI-1 leak rate testing is important to 17 consider.
18 But, the merits of that aside, Section 4 is about 19 TMI-1 leak rate tseting, Section 13.2, as Mr. Blake stated, 20 is about Staf f position on integrity of various individuals, I
21 some of whom had nothing to do with leak rate testing, some i
22 of whom are explicitly excluded from consideration as far as 23 the scope of this proceeding is concerned by Commission 24 order.
And certainly, it is very conclusory.
)
25 And similarly, in Section 5.1 and 5.2, while they i
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are about TMI-2 leak rate testing, it states the Staff's 2
findings and conclusions on the involvement of various. types 3
of individuals.
4 And, as I said before, to the extent that the 5
Staff's position will be presented in this proceeding, we 6
will have documents and testimony which will fully describe i
7 our position and will have'all the supporting documentation 8
that was relied upon to reach those findings and l
9 conclusions.
10 MR. BLAKE:
Judge Kelley, if the Board would be 11 disposed to try to take some of Stier and not others, 12 mindful of Mr. Voigt's position, I think that if you, the l
13 Board, did not take Volume 1, which is an overview to Volume 14 2, which specifically goes through those individual or l _
current GPU Nuclear employees and their involvement, that is 15 16 at least the largest part of the conclusions of Stier, to 17 which he has objected, and I understand to be his objection, l
l 18 that is, in fact, physically capable of being done.
They 19 are separate volumes.
20 I'm not suggesting, not advocating that, but I I
l 21 think it is physically able to be done for purposes of the l
22 record.
l l
23 MR. GOLDBERG One other thing, Judge Kelley, in 24 connection with those same comments about accepting in the 25 record entire documents or pieces of documents, or possibly l
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carving them up, or the Board using their judgments as to 2
what parts ought to receive what kind of weight, I am pretty 3
sure that I have made this clear before, but I think I 4
should make it clear again now so that there is no claim of 5
surprise by anyone.
6 The Staff in OI reports, when they are available, 7
will address TMI-2 leak rate testing and will state findings 8
and conclusions about the involvement of currently-licensed 9
individuals.
But, it goes beyond that, and states the 10 Staff's evaluation of the current performance of those 11 individuals and the Staff's recommendations to the Commission as to what, if any, further action should be 12
\\#
13 taken with respect to each individual who is found to be 14 implicated in leak rate testing improprietios.
15 The reason why Staff has that scope is because the 16 Commission directed it to have that scope.
Not all of that, 17 however, is within the scope of this proceeding.
It will 18 not be possible to carve those documents in such a way that 19 only those portions which are relevant and material to the 20 scope of this proceeding, can be admitted into evidence.
21 So, it will necessarily be the caso that there is 22 going to have to be some judgment by the Board as to which 23 portions of those reports are within the scope of the 24 proceeding, and therefore, will be considered by the Board O
25 in making its findings on the issues in this proceeding.
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.Because by Commission order instituting this 2
proceeding, the Staf f was directed - following the proceeding 3~
and hte Board's issuance of its findings, to make 4
recommendations to the Commission at that time as to whether 5
any further action is appropriate-with respect to any 6
individuals implicated, the recommendations in those reports 7
should be considered as temporary recommendations based on i
8 the evidence that was available to date.
9 As the Commission ordered us to do, we will 10 evaluate this record and the Board's findings, and within 60 11 days of the Board's decision, make the final recommendations 12 to the Commission as to further action against individuals.
13 So, we have not implemented any of the recommended 14 actions that will be contained in these reports, and we will 15 roeevaluate the entire series of events for each individual 16 before making the final recommendations, after this 17 proceeding is over.
18 JUDGE KELLEY:
I think I should say again, the 19 Board itself have not soon the Staff report or the OI 20 report, and we made a judgment wo don't want to see thoso l
21 reports until the Parties do.
[
22 We are interested in your comment, Jack, about why 23 the recommendations on sanctions not be sogregable in some 1
24 fashion.
We appreciato you made a judgment.
I gather you O
25 are saying there would be problems in doing that.
It in l
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.something I think we might consider.though, nevertheless, 2
considering.whether it is feasible.
3 We will just have to cross that bridge when the 4
report comes out.
5 MR. GOLDBERG:
Maybe it is certainly not correct 6
to say it is impossible.
It might be difficult.
It might 7
not read too well.
8 JUDGE KELLEY:
It is useful for you to say it 9
again and tell us what to expect.
I guess we will just have 10 to see what to do when we get the report.
11 Did you have a response -- We have been talking, I 12 think, about NUREG No. 2.
Do you want to come in and 13 respond to that?
14 MR. VOIGT:
I guess I should say a few words.
15 There has been a suggestion that it is 16 inconsistent for the employees to propose certain portions 17 of this report when we have opposed certain portions of 18 Mr. Stier's report.
19 I think the answer to that really is found in 20 Section 13.2, where the Staff expressly said that they draw 21 no conclusion as to the individual's managerial integrity.
22 And then they list a number of individuals, flerbein, Miller, 23 Ployd, Zewe, Seilinger, Kunder -- so, we didn't feel that it 24 was inconsistent.
O.
25 It was true that the Staff in Table 13.2 says the ACE FEDERAL REPORTERS, INC.
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same people essentially that I just named are, " implicated 2
or involved in leak rate."
3 That does not suggest a final conclusion to me.
4
-The reason that I put the document forward, or at least the 5
reason I put Section 13.2 forward, was because this is the 6
current Staff position.
7 Now, if this wonderful report ever comes out and 8
the Staff position has changed, then we may have a different 9
kind of discussion about the continuing relevance of Section 10 13.2.
But right now I think it.ought to be in the record.
11 JUDGE KELLEY:
Okay.
12 We are going along here, ladies and gentlemen, 13 subject to an exception that anybody may obtain, I am j
14 assuming we are getting these matters discussed, the Board 15 can read the transcript and look at the papers and make a 16 rule.
17 So, if you feel otherwise about a particular 1
18 point, speak up.
19 Let us turn Mrs. Aamodt's filing.
We wanted to 20 talk a bit about some of the witnesses and documents that 21 you list in the same way we talked about some of the 22 others.
23 MS. AAMODT Judge Kelley, I called your secretary 1
24 yesterday because after I got on the road I found that I had i
C) 25 not brought with me anything I had filed on the 18th and i
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19th.
2 She did provide me with copies of everything 3
except our list of witnesses, suggestions for witnesses.
4 JUDGE KELLEY:
W( ~will see if we can't cure that.
5 (Document handed to Ms. Aamodt by Judge Kelley.)
6 Mr. Voigt, is your timing constraint the same as 7
it was?
8 MR. VOIGT:
Yes, it is.
That doesn't mean we have 9
to terminate the hearings.
It just means I have to leave.
10 JUDGE KELLEY:
Do you wish to be heard on the P
11 general question of schedule?
By that I mean when the April 12 3rd order came out and you filed on that.
I think if youdo O
N-13 need to leave we might want to ask you a couple of questions 14 on that.
You might want to comment further.
15 Then we would simply go ahead.
We have 16 Mrs. Aamodt's document to talk about, and a few other 17 things.
But we can accommodate you to that extent, I think, 18 and we will hear from the other Parties, of course, on the 19 same point.
20 MR. VOIGT I think our principal concern is 4
21 spelled out pretty well in the document that we filed.
Our 22 concern in essence is with the continuing unavailability of 23 the NRR OI report.
24 JUDGE KELLEY:
Let me speak to that.
It won't 25 take me long.
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I checked with OI yesterday about the status of 2
that report, and was informed that it was one, not yet 3
available, but that I could safely say that it may be 4
available around the first of May, or it may not.
5 (Laughter.)
6 I wish I could tell you more than that.
7 Go ahead.
8 MR. VOIGT Let me give the Board a little 9
background here.
10 To the best of our knowledge, the last formal 11 interviews that were conducted by Mr. Capra and 12 Mr. Christopher were around June of 1985.
We got two 13 subsequent requests from Mr. Christopher for an informal 14 followup interview with an individual.
15 The last of those informal followup interviews was 16 conducted in September of 1985, and we were given to 17 understand at that time that Mr. Christopher was ready to 18 write his report.
19 Now, here we are in April of 1986 and we don't 20 have anything to look at.
21 The Board had also identified a memorandum by 22 Mr. Russell and Mr. Capra that was dated in September of 23 1985, which said that was not available to the public.
24 Well, I made a Freedom of Information Act request 25 for that memorandum.
The time for response to it has ACE FEDERAL REPORTERS, INC.
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passed.
I have been told on the telephone that my request 2
is being denied.
I haven't gotten a written confirmation of 3
that, although I requested it, which may mean somebody in 4
the General Counsel's office is having some second thoughts.
5 The point is, the Commission, through its various 6
different arms, has created a very troublesome dilemma.
And 7
I think it is just as much a dilemma for you gentlemen as it 8
is for the employees.
9 The Commission, five individuals who supposedly 10 are the people who run this place, said that they wanted to 11 have a hearing.
But another organization within the 12 Commission called the office of Investigation, has got I\\>
13 everything that we nood for the hearing bottled up.
And 14 they won' t give it out to the Board, they won't give it out 15 to the Parties, they deny Freedom of Information Act 16 requests.
17 It seems to me that the only proper thing to do at 18 this point is for the Board to go back to the Commission --
19 certify this case back to the Commission and suggest to the 20 Commission that they either direct Mr. flayes to got his act 21 together and get his report on the street, or else they just 22 suspend this proceeding until such timo as the report is 23 roloased.
24 Now, why do I fool it would be prejudicial to go i
25 ahead without this report?
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I guess there are two basic reasons:
First of all 2
we know there are very serious disagreements among the i
3 technical experts.
4 One analyst looks at a strip chart, a leak rate 5
test, some other documents, and he says, why I believe water 6
was added during that leak rate test.
7 Another analyst looks at the exact same documents 8
and says, no, that wasn't water, that was hydrogen.
9 Dr. Chung looked at some of the documents and 10 said, neither water nor hydrogen was added during that test.
1 11 Another analyst comes along and he says, NRC Staff
^
12 concluded this leak rate test was affected by the addition 13 of water; it wasn't water it was hydrogen; and besides that, 14 we don't think it had any effect on it.
And there are 15 numerous examples of that.
You can find them in the Stier 16 report.
17 What you can't find is the other half.
What did j.
18 the Staff conclude and how did they reach their conclusion?
19 And I think it would be unfair and misleading to have half 20 of the story without the other half.
And in the end, would 21 probably be counterproductive because we would wind up 22 having to recall some of the earlier people who testified 23 when we found out what the Staff had said in response to 24 what we had already heard.
25 JUDGE KELLEY:
Is it really a question of fairness l
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or a question of efficiency?
2 If it was a real fairness problem I assumo we 3
wouldn't do it, just wait.
But it seemed to us -- and that 4
is why we issued an order -- well, let's get something 5
done.
Let's talk to Stier, let's hear the background 6
testimony, let's get this show on the road.
And hence, our 7
order of April 3, which may have come as a surprise.
But 8
that was our thinking when we began to wonder when we were 9
going to see these reports.
10 So, that is kind of where we were coming from.
11 But, is it really unfair?
Why unfair?
12 MR. VOIGT:
I will tell you when it clearly gets
[h
(_/
13 to be unfair, without conceding that it isn't at the outset.
14 It gets to be unfair when wo start to call upon 15 those employees who have becomo participants in this 16 proceeding to testify.
And they still have never had access 17 to the previous sworn statements that Mr. Christopher took 18 from them.
That is patently unfair.
19 JUDGE KELLEY:
Agreed.
That's unfair.
That is 20 not what we are talking about.
21 MR. VOIGT But then let's go back to officiency.
22 If you accept the promise that this proceeding at 23 somo point absoluto1y, positively has to stop until wo got 24 this wonderful report, then I say let's stop now and not
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25 switch gears and switch horsos and have to recall people and ACE-FEDERAL REl'ORTERS, INC.
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redo things..Because if you are going to stop sooner or 2
later, it seems to me efficiency, if not fairness, suggests
-3 that you stop now.
Wait until you have got all the cards on 4
the table, and then decide how to shuffle them.
5 JUDGE KELLEY:
A couple of other points.
Maybe we 6
.can hear from you.
7 You say in your pleading this is addressed to the 8
schedule put out on April 3, that there isn't enough time to 9
develop questions.
In fact, I think you thought a 10 no-precedent proposal for that reason.
11 And what we weren't clear about was, you state, 12 for example, well, there are a lot of tests here, maybe l
13 200-odd tests and you would be obliged to prepara questions j
14 on each such test.
And I wondered about that.
I don't 15 pretend detailed knowledge of the tests.
16 But, from my experience in OA cases, for example, 17 we come on piles and piles of nonconformist reports.
They 18 do tend to get generic af ter a while.
There are only so t
i 19 many ways you can make a mistake.
And I would have thought l
20 that of 220-some tests -- throwing that number out in the 21 air -- we wouldn't find 220 different problems, but that 22 there would be quite a bit of repetition.
23 Frankly, it didn't occur to me that we would havo l
l 24 to go through in detail overy test involved here.
Maybe I'm i
25 wrong.
But, aren't there some genoric patterns that emorge, i
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which allow one to categorize these tests?
2 MR. VOIGT:
I think I would say yes, and no, to 3
that.
Let me try to give you a couple of examples which may 4
clarify.
5 There are a certain number of tests where there is 6
an issue as to whether the wrong, in quotes, level 7
transmitter channel was selected by the operator.
I would 8
tend to agree that that is ger.aric in the sense that it is a 9
pity -- you can read the strip charts real easy on that.
It 10 is a bad channel.
It just jumps out at you.
11 There are issues, of course, as to whether they 12 knew they were using the wrong channel, or whether there was
( ')
\\/
13 anfthing wrong with using the wrong channel.
- Again, 14 remember, wrong channel is in quotes.
15 But, there is a pattern there, sure.
16 The hydrogen and water additions.
That is a lot 17 tougher.
For one thing, almost the whole ballgame in a lot 18 of those tests is on calibration, because if you look at the 19 plant records, you might very well conclude that the water 20 wasn't added.
21 But, Mr. Capra, through a methodology which has 22 yet to be explained to me, has decided that some of the 23 clocks were wrong, which is, I think, conceded.
But, more 24 importantly, that he has a way of rectifying that O'
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that hydrogen was added four minutes after the beginning of 2
the test.
Where other records tend to indicate that it was 3
added prior.to the commencement of the test.
4 That, I'm afraid, requires individual analysis.
5 JUDGE KELLEY:
Would you expect, among these many 6
tests in the Stier report, that there might be at least some 7
of them where all experts would agree that is a valid test.
8 And if so, why would we have any interest in it?
Except as 9
a baseline, maybe.
10 MR. VOIGT:
Judge Kelley, if I had Mr. Capra's 11 report and I could see what he said and what Mr. Stier said, 12 and then I were permitted by the Board,to talk to the other 13 parties, I might be able to cut out quito a few tests.
But 14 right now I don't have any of that, so I can't do it.
15 JUDGE KELLEY:
Okay.
16 MR. VOIGT:
And, to the extent that I don't know 17 what Capra's position is, I may have to protect myself by 18 propounding questions to Stier, because I don't know what 19 Capra's position is.
20 If I find out what Capra's position is, and maybe 21 in the best of all possible worlds I can sit down in a room 22 with some people for a day or two and got, you know, MPR's 23 position, Capra's position, any questions that I might be 24 able to put to them informally, and maybe we could knock out O
25 100 of them.
I would love to try.
But, I can't commit to ACE. FEDERAL REPORTERS, INC.
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that because I don't have the information to do so.
2 JUDGE KELLEY:
Well, we wanted to give you a 3
chance on those questions.
It is up to you if you want to 4
go.
5 MR. VOIGT:
I think I had better.
6 There are some later flights, but I am not at all 7
sure I can got on them at this point.
8 JUDGE KELLEY:
Okay.
I appreciate your coming.
9 As long as wo just heard Mr. Voigt on thse 10 particular interrelated points, I suggest we tako a short 11 break.
Why don't we take a ten-minuto, but no more, break, 12 come back and talk to this subject we have just heard C's K/
13 Mr. Voigt on.
14 Then we will get back to Mrs. Aamodt's documents, 15 and whatever also wo need to do.
Wo should be able to 16 finish up in another hour, I think.
17 (Recess.)
18 JUDGE KELLEY:
Okay, we can resumo.
,\\
19 MR. GOLDBERG Judge Kolley, I wanted to correct 20 something I said about the Staff report.
I am trying to 21 recall how it is structured.
And, in thinking about it 22 further and discussing it with a member of the Staff and my 23 colleaguo hero, it maybo oasier than I suggested, to carvo 24 it up, if that were the floard's wish.
O)
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25 What we have intended to do all along is doloto AcII.Fl!Dl!RAL RiiPORTliRS, INC.
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certain information required to be deleted by the Privacy 2
Act, before that report is made available.
3 We did not intend to delete anything else from the 4
report, even though it went beyond the scope of this 5
proceeding, because it was not prepared for purposes of this 6
proceeding.
7 And, without getting into the merits of whether 8
the Board should do this or not, in our view if it were 9
determined that there should be further deletions of 10 information not within the scope of this proceeding, namely 11 current performance of individuals and the then 12 recommendations of the Staff about further action concerning 13 implicated individuals, it is probably easier to do that 14 than I thought it was.
15 JUDGE KELLEY:
Thank you.
Again, that is 16 something that we can look at when it becomes available.
17 We had just heard from Mr. Voigt, I guess, on the 18 general question of the April 3 order and the timing, 19 whether to go ahead, or wait for the OI report.
'20 One thing that he raised in his pleading on that 21 subject, that I didn't mention to him, but we would like to 22 mention it now, he makes a point that the Board in its order 23 of April 3 did not define what constitutes a valid test.
24 And noted that various experts might disagree on what is 25 valid and what is invalid.
And that seemed to be a rather i
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important operational thing to nail down, a standard to be 2
understood by everybody.
3 What we would like to do, we tried our hands at a 4
. disposition.
I am going to ask Judge Kline to state it.
5 Not that you have to actually right now, this afternoon --
6 it is a technical question, but you already, I believe, are 7
being asked to file as well as Mr. Voigt being asked to file I
8 by May 9, some statements about what prior statements you 9
are going to use.
10 What we are going to ask you to do is include in 1.1, that May 9 filing, whatever comments you want to make on the 12 proposal that Judge Kline will now state.
/~Tl 13 JUDGE KLINE:
We used the term valid in that order 14 in the context of efficient planning for a Phase I technical 15 type of hearing.
And what we had in mind was whether or not 16 a particular record of leak rate reflects the state of an 17 identified leakage at TMI-2 at the time the record was made.
18 We thought at the time that it was reasonable to 19 undertake in an initial technical phase of the hearing, p
20 simply a winnowing of the total number of tests down to a 21 manageable number of questionable tests on which we could 22 focus our attention in later phases.
23 So, in terms of the categorization that we spoke 24 of earlier, there may well be a category of tests that are 25 ACE-FEDERAL REPORTERS, INC.
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_ valid and to which'there is no dispute.
And we thought as a 2
matter of efficiency, we could get those identified early.
3 JUDGE KELLEY:
That is not a detinition for all
'4 purposes.
It is an earlier winnowing test.
5 Is that fair, Gerry?
6 JUDGE KLINE:
Yes.
7.
JUDGE KELLEY:
If you feel that approach is 8
useful, we would like to hear what you feel about it.
But 9
again, take that one home with you and let us know in your 10 later filing what your reaction is.
11 Speaking then to the proposition of the earlier 12 hearing, possibly without yet having in hand the OI reports, 13-Mr. Blake, do you want to speak to that.
14 MR. BLAKE:
We are prepared to go. ahead on a 15 schedule and hear from some technical witnesses before we 16 have the NRR OI report.
It frankly appears to me where you 17 hear implications, no matter the degree of provisos that 18 accompany those, that these reports may be available by 1 19 May, that we will likely have them in any event,by the time 20 we would now schedule the time for the heairng to start.
21 But, even if we don't, to have Mr. Stier come in 22 and testify with his report out on the street having been 23 widely read, I just don't -- he is going to say what he is 24 going to say based on what he saw in his report that had 25 just been published.
I don't see the impact of not having i
i l
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the NRR OI report as well available.
2 It may well lead to inconsistencies, as Mr. Voigt 3
said.
Maybe we will want to have Mr. Stier come back and 4
talk about his views of the report which subsequently is 5
issued.
6 But we are prepared to go ahead.
By the same 7
token I don't have an objection to putting it off as 8-Mr. Voigt has suggested.
We can go either way.
9 JUDGE KELLEY:
Thank you.
10 Mr. Burns?
11 MR. BURNS:
Your Honor, if I understand the 12 Commission's order in December 1985, it appears the reason I 13 am here and my client is a party to these proceedings, is by 14 and large a result of the U.S. Attorney's press release I
15 which I read earlier, and I obviously will address that at 16 the appropriate time in the hearing.
17 Given that focus, if I am correct in my focus, I 18 don't think I have a position either way on the technical 19 aspect or the Phase I aspect of these hearings.
So, I have 20 no objection either way.
21 JUDGE KELLEY:
Mr. Maupin?
22 MR. MAUPIN:
It makes no difference to me.
23 JUDGE KELLEY:
Okay.
24 Ms. Aamodt?
25 MS. AAMODT:
I don't have any opinion.
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JUDGE KELLEY:
Okay.
1!
Mr. Blake states correctly, this whole discussion l
1 3
can be academic if we do get the reports in the fairly near 4
future.
But, we appreciate your reaction.to that.
~
5-In the April 3rd order, we set a schedule which, 6-obviously, was overtaken by events.
But, should we decide 7
that we do want to proceed in the fairly near future with a 8
hearing leaning towards the technical part of it, in rough 9
terms I am trying to get a fix on when we might do that 10 hearing, instead of the time that has now been superceded.
11 This Board will be issuing a memorandum and order 12 as an outgrowth of this discussion.
It seems to us since O'.
13 the 1st of May is approaching when we have been led to 14 believe we might have this reoort, we would like to let at 15 least a little time pass and mayu' that will happen, and 16 that will affect what we do.
17 I don't envision that we would have a Board order 18 out -- let's assume that we decide to go ahead with an early 19 technical _ hearing, that the order putting that in motion l
20 would be out before maybe the week after ney.t.
I kind of 21 doubt that it would be out next week.
22 Also, there has been a lot of debate here today 23-and we have a lot of issues to decide.
24 But, I would say the early part of May we would O'
'~
25 probably issue a memorandum and order, and if we were to do ACE-FEDERAL REPORTERS, INC.
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that calling for a hearing, the next step'that we had listed 2
here was Parties' questions.
They would be your questions 3
that the Board would review, and then put to the witneses if 4
found within the scope.
5 We had a date some couple of weeks after the 6
conference.
7 Again, without trying to be too precise, would you 8
think it reasonable, given the record that we have got --
9 again there is uncertainty there because we have to rule on 10 what is in the record, I understand that -- given the t
11 memorandum and order ruling on what is in the record in
.i 12 early May, that timeframe -- how much time following your 13 having that order in your hands would you say you need in F
14 order to prepare questions to submit to the Board?
~
15 Can I just go around the table?
16 Mr. Blake, what would you say?
17 MR. BLAKE:
A tough question for me.
18 If it is, for example, Mr. Stier is going to come 19 in, we at the moment don't have any questions.
We have his 20 report.
We don't have questions.
21 If it is going to be Mr. Hartman or somebody like 22 that, it might be that we will have some questions to think 23 about.
24 It is tough for me to answer without knowing what 25 the Board's rulings are in this initial technical phase.
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'l With that, I would say a couple of weeks.
That order of s
2 magnitude.
3 JUDGE KELLEY:
That's helpful. And we will bear in 4
mind that we are asking you a question based on some 5
uncertainties.
.6 Mr. Burns, what would you say?
7 MR. BURNS:
I don't think that timeframe would be 8
difficult for me.
I guess one question I would ha e is, 9
whether Mr. Stier's testimony at this phase would simply be 10 as to technical questions and technical evidence.
11 JUDGE KELLEY:
That's the basic idea, correct.
12 MR. BURNS:
I would then -- if I could just maybe yx
-13 get out of order and raise a point right now that. ties in 14 with Mr. Stier.
If we are not going to get into the other 15 aspect while he is here during this first phase as to 16 individuals, or involvement --
17 JUDGE KELLEY:
We are not.
I will say that 18 clearly.
19 MR. BURNS:
Good.
Because at that phase I would 20 be very opposed to the Court's suggestion about the 21 no-access rule?
22 As far as the technical phase with Mr. Stier, I 23 guess I don't have a problem with the no-access rule.
But I 24 certainly woul dhave when we get into areas where he may be O
25 asked questions or information may be forthcoming concerning ACE-FEDERAL REPORTERS, INC.
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my client individually.
2 JUDGE KELLEY:
Okay.
The no-access point is sort 3
of a separate point.
4 Should we leave that to when we can get back to 5
it, would you say that two to three weeks to prepare 6
questions and submit to the Board is reasonable?
7 MR. BURNS:
I think so, yes.
8 JUDGE KELLEY:
Okay.
Mr. Voigt isn't here.
.9 What about that timeframe?
10 MR. GEPHART:
I presume at the present time you 11 are talking about basically four or five witnesses; 12 Mr. Wermeil, Mr. Kirkpatrick, Mr. Rockwell and Mr. Stier 13 and/or some of his people.
14.
JUDGE KELLEY:
Well, at the present time, plus 15 whatever rulings we make under the various proposed 16 witnesses that have been put forward, I would expect that 17 some may be added, some may be rejected, and some may be 18 put on hold, so to speak.
19 Mr. Blake suggested for example, that Mr. Hartman 20 may not be an appropriate technical phase witness, and he 21 may be right about that, in which case -- I'm afraid I'm 22 asking again based on some uncertainties, but it_is the 23 basic ones that have been allowed in and perhaps a few 24 others.
It is not, I think, a long, long list.
O 25 MR. GEPHART:
With that uncertainty, I guess our ACE-FEDERAL REPORTERS, INC.
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answer would be anywhere from two weeks to a month.
2 JUDGE KELLEY:
Okay.
3 Mr. Maupin?
-4 MR. MAUPIN:
I think I would subscribe to 5
Mr. Blake's position.
6 JUDGE KELLEY:
Okay.
7 Ms. Aamodt?
8 MS. AAMODT:
I think I would subscribe to a month.
9 JUDGE KELLEY:
Okay.
Thank you.
10 We would. expect then, that when we got the 11 questions -- I think we spelled out earlier we would review 12 the questions and we would not ask questions that we thought
' I)
\\~/
13 were fairly-outside the scope.
It seems to me-we would give 14 them the benefit of the doubt.
And we would add questions 15 of our own.
16 Now, our expectation, as we spelled out here, and 17 I.know Mr. Voigt objected to it.
Others may wish to speak 18 to it.
Our expection was in the case at least of Stier and 4
19 Rockwell, who are sort of the two key technical witnesses, 20 at least, and whoever they may bring along by way of 21 technical assistance, that we wouldn't ask them for prefiled 22 testimony.
We would simply submit the questions to them in 23 advance.
24 Mr. Voigt has already expressed his reservation 25 about that approach.
But, let us hear from the other ACE-FEDERAL REPORTERS, INC.
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. Parties about that.
2L I guess our feeling was these are technical 3
questions that you could very well benefit from having the 4
witness be able to review and think about in advance.
It is 5
not a murder case, it is a case.where we are asking very.
6 objective, scientific type questions where we would be ahead 7
by doing',that.
8 Do we have objections then to our following that 9-approach and giving the witnesses the questions?
10 I might add, at least one of them, maybe both, 11 have expressed a strong preference for that approach.
12 Mr. Blake?
"13 MR. BLAKE:
I'm supportive for these technical
'14 individuals.
It might be -- I don't know what was behind
~
15 Mr. Voigt's pleading.
To the extent he had in mind 16 impeachment type or credibility type questions, I 17 can understand why an attorney would not want to share those 18 in advance.
19 To the extent that he offers questions to the 20 Board, ought to be provided for the individual witnesses, 21 even the technical witnesses, if he were to identify those 22
-- I mean, I for my purposes would be willing to leave to 23 the Board's discretion, to say, "Look, we will hang on to 24 these and not pass them out," -- but if as I think was
~O.
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25 initially intended, this is really to get a technical l
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background, if the individuals have questions, I think it 2
makes a lot of sense to share them in advance.
3 JUDGE KELLEY.
We haven't discussed it. But, if 4
it was just the idea of holding on to what was clearly an 5
impeachment question, it appears we can do that without 6
any --
7 MR. BLAKE:
I think nobody had that in mind, but 8
as I read it and as I thought that was the case, it seems to 9
me we could share those with you if wanted us to and just 10 leave it to your discretion as to the type of testimony, 11 JUDGE KELLEY:
Any further comment on this queson 12 of presubmission of witnesses from the numerous employees?
/
13 Ms. Boast, anything?
14 MS. BOAST:
No.
15 MR. GEPHART:
You mean presubmission of questions?
16 JUDGE KELLEY:
Right.
17 MR. GEPHART:
No, we have nothing further.
18 JUDGE KELLEY:
Mr. Burns, any problems with that?
19 MR. BURNS:
I have no objection, as long as it 20 isn't a precedent of Phase II.
21 JUDGE KELLEY:
It would be a different question.
22 We might do it, but we will talk about it.
23 Mr. Maupin?
24 MR. MAUPIN:
I approve of the idea of your
' '/
t 25 retaining discretion to hold back on the questions in your ACE-FEDERAL REPORTERS, INC.
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(,
1 judgment.
i :
2 JUDGE KELLEY:
Okay.
3 Ms. Aamodt?
4 MS. AAMODT:
I agree with Mr. Voigt on this.
I 5
think we are now having to make a judgment as to which 6
technical opinions are credible technical opinions.
And 7
evidently there has been expressed here that there is a 8
tremendous amount of disagreement between the experts.
9 So, I think that they should be able to -- we 10 should be able to determine which ones are most credible by 11 having questions placed to them in a surprise fashion.
12 JUDGE KELLEY:
Well, we will take the views into
/
13 consideration.
If we do decide to take that approach, I 14 expect we could do it in a week or so.
15 Another point we hadn't specifically set about 16 prefiling of staff testimony, which we do contemplate.
17 Jack, would that be available, do you think, how 18 much in advance of the hearing?
19 MR. GOLDBERG:
Well, I guess it depends upon 20 whether the Board plans on providing them with questions in 21 advance, also.
22 I think the discussion of providing questions in 23 advance to the witnesses is most significant with respect to 24 Stier and Rockwell.
It is not so important in connection 25 with the Staff witnesses.
But, if the Board were not going ACE FEDERAL REPORTERS, INC.
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to.be providing them with questions in advance, then I would 2
say it would just be at least two weeks before the beginning 3
of the hearing the Staff would prefile its. testimony.
4 If the Board wanted to allow for providing them 5
with the Parties' and the Board's questions, then we would 6
have to have that testimony filed sometime before two weeks 7
before the hearing, like three or four weeks before the 8
hearing, so that the Parties had a couple of weeks to come 9
"up with their questions,. submit it to the Board, the Board 10 look at them and then provide them back to the Staff 11 witnesses and allow them to have a little bit of time to 12 review the questions.
Ak-)
13 So, I would say somewhere between two and four 14 weeks prior to the beginning of the hearing, since they are 15 going to be the first two witnesses, and depending upon 16 whether the Staff can provide them with the questions in 17 advance, they would file their prefiled testimony.
18 JUDGE KELLEY:
Let me just put a proposition to 19 the Parties.
This is just something to bounce off.
20 We had the reports of Rockwell and Stier in effect 21 doing service for prefiled testimony.
We don't have 22 anything like that from the Staff.
So, we treat those 23 reports as prefiled, and send them questionsin advance.
24 If you are getting profiled from the Staff which O
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reports', might it not be then reasonable to simply have the 2
questions for the Staff given to the Board some few days 3
before-the hearing and not presubmit to the Staff?
4 Do you think you lose very much by that?
5 MR. GOLDBERG:
No, we don't have any objection-to 6
-that.
7 JUDGE KELLEY:
All right.
8 Any objection to that approach?
9 MR. GEPHART:
I'm not sure I understood what you 10 just said, Judge Kelley.
11 JUDGE KELLEY:
It would work like this, as I 12 envision it.
- CT'
- /
13 The Staff would prefile at least two weeks prior 14 to a hearing date.
And then the Parties would get the 15 testimony right away and they would read it over and prepare 16-questions which they would submit to the Board, let's say, a 17 few days in advance.
But they wouldn't necessarily go to 18 the Staff in advance.
They would just be asked.
19 I don't know that we would preclude giving them to 20 the Staff, but the idea of going through a double cycle just 21 to avoid that.
It seems to me the Staff testimony is going 22 to be in a sense somewhat more focused.
23 On the other hand, it is supposed to be a sort of 24 a background layout as I understand it, and might not 25 generate a lot of really very finely-tuned questioning.
4 ACE. FEDERAL REPORTERS, INC.
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s 2
So, if we went down roughly the track that I have 3
been outlining in the Board order in early may, and 4.
questions due from the Parties towards the end of May, and 5
on to the witnesses first week in June, would it be then 6
reasonable to think in terms of the hearing in the latter 7
part of June, date to be figured out later, but in that 8
rough timeframe?
9 Does anybody think that is unreasonable?
10 (No response.)
11 Let me just say once more, when we get those other-12 reports, that may have some effect on the structure of p)
\\-
13 things,-it may have some effect on the schedule and so on, 14 and we will take that into account.
15 But with the assumption that we don't have them 16 and I want to go ahead, that seems reasonable to us.
17 I would like to turn back.
Ms. Aamodt has a list 18 of proposed witnesses and documents we wanted to raise a few 19 questions about.
20 As to the witnesses, Ms. Aamodt, Dr. Chung we have 21 heard a lot about, I don't think we need to elaborate on 22 him.
23 Tim Martin.
Could you tell us briefly in the case 24 of Tim Martin and the inspector having to do with the O
25 October 18th report, I guess it is, why you want to have ACE-FEDERAL REPORTERS, INC.
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them as witnesses?
2.
MS. AAMODT:
I think to go first to the inspector, 3
that is Mr. Haverkamp.
4 JUDGE KELLEY:
He has been spoken of before to 5
some extent.
6 MS. AAMODT:
Tim Martin was the principal 7
investigator, where Mr. Chung was the technical 8
investigator.
And I felt that it would be helpful to have 9
him as well in our review of the Chung reports, which I 10 think are essential to the hearing.
11
-JUDGE KELLEY:
Haverkamp I believe we heard about.
12 MS. AAMODT:
We heard about.
I didn't know his
-p N-13 name.
I thought it was Haverkamp, but I wasn't sure.
14 JUDGE KELLEY:
In the case of TMI training 15 instructors, do you have anybody specific in mind?
16 MS. AAMODT:
I don't know who had the 17 responsibility for instructing the operators on how to
'18 perform the leak rate test.
So, I think GPU would have to 19 identify that person and their training materials and what 20 tests were given, and what responsibility the training 21 department had for the way the leak rate tests were 22 performed.
23 JUDGE KELLEY:
We had some concern in that case 24 about whether the training instructors are like'ly to fit O_
25 within the scope of the issues we have been given.
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I can understand how one would say of an operator 2
who was poorly trained, he didn't do a leak rate test 3
right.. The relationship I can see.
But, in terms of the
~
4 issues and our being asked to find out who falsified leak 5
rates, I am not sure training is within tht.
6 MS. AAMODT:
It has been raised.
Mr. Stier raised 7
it and Mr. Voigt spoke to it today, that'the method of 8
performing the test evolved from the operators' experiences 9
at Unit 1.
And I felt we should see what they were trained 10
-- how they were trained to perform those leak rate tests, 11 if that's an issue, and how they evolved from Unit 1, I
12 think it is an issue of how they evolved from training.
13 JUDGE KELLEY:
If there were one such instructor, 14 would that be satisfactory from your standpoint?
15 MS. AAMODT:
The person responsible for that.
16 And, I think as far as documents go the kinds of 17 training materials that were provided to the operators.
18 JUDGE KELLEY:
We can consider that.
19 I think there is some scope issue here.
We can 20 hear from the other parties, but I understand your request.
21 Jack, do you have any comment on these requests?
22 Well, the first two go to NRC.
23 MR. GOLDBERG:
We already spoke to Dr. Chung.
24 Mr. Martin was in charge of the original
)'
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11 shortly after Mr. Hartman made the allegations on-(_j 2
television.
Mr. Martin proceeded to. investigate the 3
allegations.
Never completed the investigation, because 4
there was a request from the Department of Justice to cease 5
the investigation and not discuss the matter.
6 And Staff reported that in its TMI-l Restart SER 7
and reported that to TMI-l Restart Licensing. Board.
8 Right now the status of that effort is that it was 9
a suspended investigation which was not resumed.
There is 10 no report per se that was generated, because they were in 11 the middle of the investigation when they ceased
- 12 investigation.
13 All of the documents and materials that they had s
14 collected and were analyzing have been placed in the Public 15
-Document Rooms and so are available to all of the Parties.
16 As is the case with Dr. Chung, it represents an 17~
effort which is, in certain respects, just historical at 18 this point, because Staff, pursuant to the Commission's 19 direction, along with OI, conducted a recent investigation 20 of currently-licensed individuals, and the results of that 21 will be documented in the Staff and OI reports when they are 22 made available.
23 So, as far as this core technical background 24 aspect of the proceeding is concerned, I don't see the need 25 for Mr. Martin or Dr. Chung.
The inspector of TMI-2, l
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October.18th, 1978 as was mentioned, was Mr. Haverkamp.
We 2
discussed him before.
3 JUDGE KELLEY:'
Do other parties have comments on 4
these particular requets, before we pass on to the 5'
documents?
6 Mr. Blake?
7 MR. BLAKE:
I'm not sure that there is a need, 8
particularly at this juncture for technical bases to get 9
into TMI training instructors.
Mrs. Aamodt has an interest 10 in this area.
We have spent years litigating training.
I'm 11 not sure if it is appropriate at this juncture.
It might 12 become appropriate as we become into the hearing and talk
.(d-~;
13 with individuals, what was their background, what was their 14 understanding.
And that might become more important at that 15 juncture.
But I don't see it here.
16 JUDGE KELLEY:
Okay.
Mr. Gephart?
17 MR. GEPHART:
We have already, I think, stated our 18 position on Dr. Chung and Don Haverkamp.
19 As to TMI training instructors, I don't know of 20 any instructors.
I'm in the dark.
I think I would side 21 with Mr. Blake on that.
22 We would be opposed to Tim Martin being called as 23 a witness.
As Mr. Goldberg indicated, he started an 24 investigation for a very short period, which perhaps is just 25 a few weeks.
He conducted this investigation.
It was then ACE FEDERAL REPORTERS, INC.
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sent over to the Department of Justice.
It was never 2
completed.
And I think it would be improper to call 3
somebody that has talked to a few witnesses, perhaps, and 4
looked at a few documents.
5 I don't know what you would ask him, other than 6
his conclusions that he reached, you know, in the few 7
witnesses he talked to.
8 So, we would be opposed to him being called as a 9
witness.
10 JUDGE KELLEY:
Might there not be some benefit?
11 I don't know the extent of Mr. Martin's efforts.
12 But, might there not be some benefit in talking to somebody
'd 13 who was, in effect, the first investigator and was there 14 when the tracks were fresh, _so to speak?
15 MR. GEPHART:
We don't feel that way, and would 16 question, I think, the manner in which that investigation 17 was commenced.
18 The witnesses that he did talk with were not 19 advised the purpose, when they went to talk with him, of the 20 investigation.
They were not represented by counsel.
To a 21
.large extent they hadn't even thought of these matters when 22 they walked in there.
And I don't think it would be helpful 23 to the Board to get any conclusions that he might have 24 reached.
25 JUDGE KELLEY:
Okay.
Mr. Burns?
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MR. BURNS:
I have ne position either way.
2 JUDGE KELLEY:
Mr. Maepin?
3 MR. MAUPIN:
Are we addressing all of the names on 4
Mrs. Aamodt's list?
5 JUDGE KELLEY:
Yes.
6 Well, John Martin; the inspector turns out to be 7
Haverkamp; and then the instructors -- discussed them, 8
generically, so to speak. We haven't discussed Mr. Queen.
9 MR. MAUPIN:
So you say you don't think we do at 10' this point?
11 JUDGE KELLEY:
We were going to get to Mr. Queen 12 and his role.
It certainly isn't in the technical part of 13 the hearing.
14 MR. MAUPIN:. That-was a question I wanted to 15 raise.
16 I have nothing else to say.
17 JUDGE KELLEY:
Okay.
18 Do you want to respond to any of the comments, 19 Ms. Aamodt?
20 MS. AAMODT:
I want to respond.
21 I think the reasons that Mr. Gephart gave were 22 reasons to talk to Mr. Martin.
Mr. Martin was there, as you 23-say, when the tracks were fresh.
The operators were -- the 24 employees were giving testimony responsive to Mr. Martin O
25 that were not directed in any sense.
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Mr. Martin, contrary to Mr. Goldberg's remarks, 2
Mr. Martin claimed.in a May 23rd or 24th public meeting-3 before the Commission, that the NRC had concluded its 4
investigation of the technical aspects of the leak rate 5
falsification in April of 1980 at the time that the matter 6
was referred to Justice. 'The characterization of the
'7 investigation as not having been completed, was not having 8
determined who was involved.
9 MR. GOLDBERG:
Judge Kelley, at a Commission 10 meeting at which Tim Martin was present, May 24th, 1983 as 11' the Staff reported in NUREG 0680 Supplement 5, Section 5.2, 12 Tim Martin stated at-that meeting for the first time-13 publicly, that.he -- and I think he was speaking on behalf 14 of some of the other few individuals who were involved with 15 him in that investigation -- had concluded back then that in 16 fact leak rates had been falsified.
17 That was a conclusion of Mr. Martin, and some 18 people working with him.
It was not a Staff position, it 19 was not a Commission position.
It was something unknown in 20 fact to most members of the Staff and to the Commission 21 until May 24th, 1983, because he ceased the investigation i
22 and as requested by the Department of Justice, did not 23 discuss any of the data that he had analyzed, or any of the 24 preliminary findings or conclusions that anyone might have j
25 reached with anyone subsequent to the time when that 4
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investigation was_ ceased, and until May 24th, 1983.
2 So, again, I would refer everyone to Section15.2 3
where that is all described.
4 JUDGE KELLEY:
Okay.
Thank you.
5 Let's turn to the document request, Ms. Aamdot.
li Going down the list, the tech specs for TMI-2 I would assume 7
are in the Stier Report in some form.
I agree they are 8
relevant and ought to be in.
9 Well, subject to check, we will assume that is the 10 case.
11 The NRC Regs, I am not aware that we have a 12 separate -- I am using the word regulation in a technical 13 sense.
Whether it was a regulation on leak rate testing, or 14 whether-it is'a guide or what, could you help on that?
15 MR. GOLDBERG:
Well, this will all be the subject 16
-- tech specs, regs, NRC policy, Reg Guides, will all be the 17 subject of the Staff's testimony by Mr. Wermeil and 18 Mr. Kirkpatrick.
19 There are general design criteria related to leak 20 rate testing, and that will be discussed by the Staff 21 witnesses as will Reg Guide 1.45 and the TMI-2 Technical 22 Specifications, Administrative Controls and all the other 23 relevant procedures will be covered by the Staff's technical 24 witnesses.
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to more than one of the reports.
Most of them are 2
. attachments to the Stier Report.
Others, I believe -- well, 3_
I am not sure whether they are attachments to the NRR or OI 4
report, because they are readily available in the 5
. Commission's regulations and other public documents.
6 But, they are, I think, attachments to the Stier 7
Report, and certainly to the extent that anyone of them is 8
not, then we would be glad to provide it to everyone and 9
include it in the record.
10 JUDGE KELLEY:
Could we just skip down to number 11 five, October 18, '78 Inspection Report and Notice of 12 Violation.
13 I take it, Ms. Aamodt, that is a-specific report, 14 a field report?
15 MS. AAMODT:
I think it has been mentioned here 16 before.
It was when Mr. Haverkamp came and found that leak 17 rate tests were being manipulated.
Notice of Violation was 18 issued.
Then there was a response to it and a signoff 19 sheet.
20 JUDGE KELLEY:
Take those two items, the October 21 18 Report followed by the Met Ed response and the signoff 22 sheet -- I'm not sure what the signoff sheet is.
23 MS. AAMODT:
That the individuals have seen this 24 response and know then therefore to comply, as the responso O
25 has indicated.
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/
Mimie-1 JUDGE KELLEY:
Mr. Blake has a comment, I think.
2 MR. BLAKE:
It is simly not accurate what 3
Ms. Aamodt has just said.
4 It is true that on October 18th -- and this is 5
where Mr. Haverkamp's involvement came about, the way in 6
which leak rate testing was being conducted came to 7
Mr. Haverkamp's knowledge.
And as a result, there was a 8
Licensee Event Report submitted by the Licensee, Met Ed, to 9
the NRC.
10 Now never to my knowledge, was there ever a Notice 11 of Violation issued, and I_ guess I would have to ask 12 Ms. Aamodt what she is talking about.
Therefore there is no 13 response to a Notice of Violation.
14 It is true that there was a change in the way in 15 which business was done, or at least an acknowledgement of 16 the way, and I needn't characterize all this because we are 17 all going to characterize this a hundred times over, exacity 18 what this is all about.
19 But, in fact, there was after the October 18th 20 period, an acknowledgement or a signature by various 2:1 operators as to how leak rate testing ought to be done.
And 22 I guess I would like not to go further than that in 23 characterizing it today.
24 There is no Notice of Violation, no Response to 25 Notice of Violation.
It was, in fact, Mr. Haverkamp's ACE-FEDERAL REPORTERS, INC.
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understanding of how leak rate testing was being done; there 2
was --.and again we are getting into whether it occurred or 3
whether it didn't, but there were discussions about whether 4
or not it was the right way.
There was an apparent change 5
in which practice was undertaken; an acknowledgement by 6
operators that they ought to change the way of doing 7
business and do it this way.
8 So, those factors are all involved in that 9
period.
No violation notice, no response.
10 JUDGE KELLEY:
The sum total of documents you have 11 been talking about, if I understand you correctly, there was 12 no NLV?
{/.
ss 13 MR. BLAKE:
Right.
14 JUDGE KELLEY:
There was an LER?
15 MR. BLAKE:
Right. Very important here.
16 JUDGE KELLEY:
And is the LER in one way or 17 another, so far?
18 MR. BLAKE:
Yes. Through Mr. Stier.
19 JUDGE KELLEY:
That's in Stier, the LER?
20 MR. BLAKE:
Yes.
21 JUDGE KELLEY:
Subsequently there was a sheet by 22 operators, a signoff sheet --
23 MR. BLAKE:
Effectively, the operators were asked 24 to acknowledge that there was a change.
I think that is a 25 fair characterization.
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And Mr. Voigt had earlier suggested this morning, 2
which I agreed with, the way in which business was done was 3
also changed along October 27th, or so, and that ought to be 4
a part of this package as well.
5 Those are all important documents.
And that last 6
one I just mentioned was not in Stier.
7 JUDGE KELLEY:
And that is the last item on the-8 Voigt list, if I recall, number ten?
9 MR. BLAKE:
Correct.
10 JUDGE KELLEY:
Okay.
Is that consistent with your 11 understanding?
12 MR. GOLDBERG:
Yes.
Not only wasn't there on 13 October 18th, a Notice of Violation, or Notice of Violation 14 about that incident on any date, there was no October 18th 15 Inspection Report either about that incident.
16 I believe the Licensee's LER was discussed in a 17 subsequent inspection report. But there was no inspection 18 report, as far as I am aware, that discusses the October 19 18th incident itself.
So, it is certainly not correct to 20 say an October 18th Inspection Report, or an October 18th 21 Notice of Violation, or a Notice of Violation of any date 22 about that incident.
23 JUDGE KELLEY:
Okay.
Sticking with this for the 24 moment, anything further on that, Ms. Aamodt?
O 25 MS. AAMODT:
We would have to correct that to say ACE FEDERAL REPORTERS, INC.
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that there was no report at all that Mr. Haverkamp filed.
2 So then we would have to talk simply in terms of the LER.
3 And, I understand that there was a Metropolitan 4
Edison response to the LER.
There was a letter --
5
' JUDGE KELLEY:
Normally, they are the ones that q
6 send it.
7 MS. AAMODT:
And that there was, as they said, a 8
signoff sheet.
And I would stand corrected then, those are 9
the correct --
10 JUDGE KELLEY:
I think the ones we talked about 11 are in one way or another.
Or, at least have been proposed 12 to be in.
~h (d
13 MS. AAMODT:
I don't think we had in before the 14 Metropolitan Edison response and the operators' signoff on 15 that response, understanding of that response.
16 MR. GOLDBERG:
Judge Kelley, the Licensee Event 17 Report, LER is something that a Licensee, Metropolitan 18 Edison itself, prepares and sends to the Commission 19 notifying the Commission of an event.
20 So, there is no Met Ed response to their own 21 report.
The LER itself, as well as subsequent discussions 22 about that LER and the review sheet and so-called signoff 23 sheet that the operators initial, are attachments to the 24 Stier Report and they are the documents which Mr. Voigt has O
25 identified on page 6 of his filing.
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So, if you want to find them very easily, just go s
2 to page 6 of Mr. Voigt's filing.
It tells you what tab in 3
the Stier Report those different items appear at.
You can 4
go there and see for yourself what they say.
5 MS. AAMODT:
All right.
6 I think I would add to that, though, all internal 7
correspondence conerning that matter, since there was no 8
inspection report.
9 JUDGE KELLEY:
That raises another question that 10 we wanted to raise with you.
You have several items here, 11 starting with Item 4, communications between operations 12 department and, skipping down to number 7, minutes,
(- \\
kJ 13 maintenance requests, internal memos.
14 And the problem we had with these designations is 15 that we had in mind, there is an awful lot of paper 16 generally available, and the Parties would come in and 17 specifically say, put in a certain document.
All Met Ed 18 internal memos, is obviously not a certain document.
19 We don't have any discovery in this case, as you 20 know.
And what I am saying is, to say something like all 21 Met Ed internal memos is not a satisfactory proposal to the 22 Board.
23 MS. AAMODT:
I should have added, concerning the 24 leak rate matter.
(
')
'/
25 I think that perhaps the company could provide ACE-FEDERAL REPORTERS, INC.
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1 those.
They would certainly give some identification as to
(,N:Mimie
,/
2 individuals that were involved, and problems that had been identified.
3-
4' JUDGELKELLEY:
There is a point-here, it seems to 5
me, of practicality.
6 We have said so many times, we have lots and lots 7
of paper and we have investigations.
If what you are after 8
is names of people involved, might it not be more practical 9
for us to go ahead and look at the record we have got.
- And, 10 if indeed we are missing somebody, we can go after them, I 11 suppose.
12 But, I just don't know what you would add by -- in b
x-13 the first place, I don't think your request is one that you 14 can make in this case.
If you are saying, Board, go get all 15 the internal memos, we would have to say no.
That is just 16 discovery, and that would be the end of that.
17 If you want to specify some specific piece of 18 paper, that might be a different thing.
If we, in the 19 course of investigating this, _ find out about specific pieces 20 of paper, we rnq t want to get that.
21 i n... tat sort of broad-brush category approach to 22 paper is not the way that we are choosing to proceed.
23 If this were a normal NRC case, I suppose if you 24 were a party, and you were litigating against Met Ed, you 25 could file a discovery request saying, give me all your ACE-FEDERAL REPORTERS, INC.
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internal memos relating to a certain subject, and I assume s,
2 you would.get it.
But, we are'not in that mode.
We have 3
been told specifically we don't have discovery in this case.
4 So, as it stands, it is not specific enough for 5
our purposes.
If you can specify a particular document that 6
hasn't been proposed that you think ought to be in, that is 7
one thing.
But a category request is not allowable in this 8
case.
9 Did you have any specific document in these 10 various categories that you would like to point to?
11 MS. AAMODT:
I wouldn't be able to identify that 12 right now.
But perhaps after examining the prior statements 13 of the employees, such documents might come to mind.
14 JUDGE KELLEY:
Well, of course, they have been 15 available and the deadline for the designations was last 16 week.
17 Are you asking for more time to designate paper?
18 MS. AAMODT:
To designate paper?
19 JUDGE KELLEY:
Documents for inclusion in the
(
20 records, specific documents.
21 MS. AAMODT:
I think I would request, if I could, 22 until May 9th, the deadline you gave me in another case, if l
23 I could, to determine whether there would be, in fact, some i
24 documents that I could identify more precisely than I have
- \\'
25 here.
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JUDGE KELLEY: ~ We'd have to hear from the other 2
Parties on that.
3 Are there any objections to Ms. Aamodt having 4
further time to designate papers for the record?
5
.Mr.
Blake?
6 MR. BLAKE:
No.
7 MS. BOAST:
Assuming you would accept a comment in 8
writing, if there was something that somebody found' 9
seriously objectionable?
10 JUDGE KELLEY:
Of course, subject to objection.
11 MS. BOAST:
No.
12 MR. BURNS:
No.
\\-
13 JUDGE KELLEY:
If you want to have until May 9th 14 to do some further review and determine what other specific 15 documents -- I really mean specific by name and date and so 16 on -- then you can do that.
17 MR. GOLDBERG:
Judge Kelley?
18 JUDGE KELLEY:
Yes?
19 MR. GOLDBERG:
The Board proposed to issue an
- 20 order concerning the matters that were discussed today in 21 early May.
22 If the Board doesn't get Ms. Aamodt's suggested 23 documents until May 9th, is that going to delay the whole 24 schedule, this whole scheme, tentative scheme that the Board n
\\~'
25 came up with?
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JUDGE KELLEY:
It certainly'shouldn'?t.
2 MR. GOLDBERG:
If this scheme gets delayed much
.3.
beyond where it is now, and we move from a hearing which h
4 will begin towards the end of' June, to a hearing which 5
begins somewhere in the beginning of July, there will-be 6
some problems with scheduling of Staff witnesses and 7-participants.
8 JUDGE KELLEY:
I think Mr. Goldberg makes a good 9
point.
s 10 Is there any reason why your designations for 11 further documents, if there are going to be any more, can't 4
12 be filed by the end of next week, which is the 2nd?
That b'U) 13 would give you another week.
It would also give your 14 disignation to us in time so that we can rule on it.
15 Is that satisfactory with you?
16 MS. AAMODT:
I was just reading this.
I'm sorry, 17 I think I missed the last thing you said.
May 2nd is what?
18 JUDGE KELLEY:
May 2nd is a week from tomorrow.
19 MS. AAMODT:
That's a deadline for what?
20 JUDGE KELLEY:
To file for any further documents 21 you want to designate for the record.
22 MS. AAMODT:
Okay.
May 2nd, then, I should do 23 this, rather than May 9th?
24 JUDGE KELLEY:
Just that particular piece of it.
25 MS. AAMODT:
Okay.
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JUDGE KELLEY:
That will enable us to have your 2
' filing'in a timely way with regard to Memorandum and Order 3'
we may be issuing.
These are have your filing in hand.-
4 The next to last item, NRC investigation of leak 5
rate falsification, referral -- does that refer to the-6 Martin undertaking?
7 MS. AAMODT:
Yes.
8 JUDGE KELLEY:
I think we have already heard about 9
that.
10 MS. AAMO DT :
There must have been something that 11 was forwarded to the Department of Justice other than a 12 bunch of papers that Dr. Chung had his analyses on.
There 13 must have been simply some covering 19tter or some 14 conclusions.
15 MR. GOLDBERG:
Judge Kelley, I can see that 16 Ms. Aamodt has a misunderstanding because there were several 17 different efforts to look at leak rate testing at TMI in 18 various timeframes and for various reasons.
19 Ms. Aamodt is confusing Dr. Chung's work, which 20 was done not too long ago in a timeframe that people 21 involved in TMI are usually talking about.
What I mean by 22 "not too long ago" is a couple of years ago.
It was not 23 part of the original investigation that Tim Martin headed 24 up, which was referred to Justice back in the 1979 25 timeframe.
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Your next to the last item here describes the 2
documents which Tim Martin collected during the course of 1
3 his very brief investigation.
They were sent to the Justice 4
Department at the Justice Department's request.
5 These are the documents which I think he made 6
reference to at that same Commission meeting when he 7
revealed that he had concluded that leak rates were 8
falsified.
9 All those documents are in the Public Document.
10 Room now.
That is the entire set of materials that were 11
~ sent to the Department of Justice.
12 Dr. Chung's work in connection with the Grand Jury 13 proceeding, was done in connection with the fairly recent 14 Grand Jury, which led to the indictment of Metropolitan 15 Edison Company and their subsequent plea of guilty to one 16 count and nolo contendere to six other counts.
17 But, they were different efforts and there were 18 different documents involved in those two efforts.
The 19 documents that are a part of the recent Grand Jury effort, 20 which led to the indictment, are Grand Jury records, and 21 that is the subject of these discussions about whether 22 anyone can have access.
That is in a record that is sealed 23 before Judge Rambo, and no one has been given access to 24 those records.
[' ')
25 MS. AAMODT:
I appreciate your explanation of ACE-FEDERAL REPORTERS, INC.
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'that.
That has never been clearly provided.
That was one 2
of the reasons why this was rather loosely constructed.
3 JUDGE KELLEY:
Okay.
Thank you.
4 ~
MS. AAMODT:
But, I still would maintain, I think 5
'all of those-documents are relevant, even though-they have 6
.now been explained to us as having occurred at different 7
times than I had perhaps presented on cases.
8 JUDGE KELLEY:
We just have a couple of other 9
things --
-10 MR. GEPHART:
Excuse me, Judge.
The last item, I 11 guess that has been disposed of as being not relevant to the 12 initial parts of these proceedings, for the same reason that n
k-13 David Dart Queen is not going to be listed as a witness at 14 this time?
15 JUDGE KELLEY:
I'didn't think it was necessary to 16 discuss.
17 MR. GEPHART:
I just wanted to be sure.
18 MS. AAMODT:
Can I make one statement concerning 19 this.
I will make it very brief.
20 I have written down a couple of notes here.
I am 21 just a little bit concerned about what Judge Kline said that 22 we will go to just those reports about which there is no 23 technical dispute to determine who was involved in -- only 24 the reports about which there was no technical dispute that 25 they were f alsified will be the ones that will be considered ACE FEDERAL REPORTERS, INC.
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in this hearing.
2 I'm concerned about that, because there is some 3
indication that MPR will be included as one of the technical 4
opinions.
And I would propose that we only' include credible 5
technical opinions.
And I don't find MPR's-to be that.
6 I do find Dr. Chung to be a credible expert, and I 7
would feel that a better standard would be to look at all 8
the tests about which most of the experts agree, rather than 9
only those about which there is no dispute.
10 Did I misunderstand you, Judge Kline?
11 JUDGE KLINE:
I think you did.
12 When we were discussing the question of validity, 13 we were surmising that there may well be tests which are 14 valid and no one disputes it.
And those are the ones that 15 we would then allow.
16 Those for which remaining dispute exists, are the 17 ones we would consider.
18 MS. AAMODT:
I stand corrected.
19 Two other points I wanted to make.
That is, I 20 think that the purpose of the hearing being to identify 21 individuals who were involved, that the most important 22
. evidence is the first-hand evidence rather than other 23 investigators' opinions.
And I see that as being the 24 records and the expert opinion on what those records mean, 25 and the statements of the individuals.
And, where there ACE-FEDERAL REPORTERS, INC.
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are admissions of guilt, of course, there is no problem.
2 There is an individual whose determination for future 3
employment must be referred to the Commission.
4 But, where there are denials we do have a 5
problem.
Concerning the matter of their prior testimony, I 6
don't know how we can pick and choose amolng this prior 7
testimony, how the Board can do that without considering all 8
of it.
And once the Board has considered all of it, then 9
the Board has gone through the process which the Board is 10 claiming that they do not wish to go through.
11 But, I don't understand how you can pick twelve 12 prior statements, or a dozen prior statements without having n
/
I
' ~/
13 considered all prior' statements.
14 JUDGE KELLEY:
Well, it is just a judgment you 15 have to make.
You have got your case to present, right, and 16 you present your case the best you can, however you want to 17 do it within the rules.
18 Do you want to read all those statements, go 19 ahead.
We don't think it is crucial.
20 MS. AAMODT:
Well, I think the individuals' own 21 statements, they are the first-hand witnesses to the fact, 22 and I don't understand why we are not interested in that 23 very best evidence.
24 JUDGE KELLEY:
Of course we are.
That is the most 25 important part of the case, one might argue.
They are going ACE-FEDERAL REPORTERS, INC.
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.to come in and testify, and we are going to listen very 2
carefully and ask them questions.
3 MS. AAMODT:
Perhaps-the Board could then give me 4_
some guidance as to where to look for the best evidence 5
among all of the statements, without reading them all.
6 JUDGE KELLEY:
I'm afraid I can't.
7 MS. AAMODT:
Okay.
8-JUDGE KELLEY:
You will just have to go ahead and 9
do that.
That is what Parties do.
10 We have pretty much covered our agenda.
11 I will say we have a motion for reconsideration 12 from Ms. Aamodt, which we will take under consideration and 13 make a ruling on.
14 We have also a motion from Ms. Aamodt in response 15 to our invitation that she supplement her original motion to 16 dismiss attorneys which she has now filed.
And I might 17 mention that the filing is timely.
There was an extension 18 given.
The date given in our original order of March 26th 19 is just about upon us and now seems to be, or may be 20 unrealistic in view of the fact that an extension was given 21-in the first place to Ms. Aamodt.
22 MS. AAMODT:
Judge Kelley, I believe it was the 23 25th was the response date.
24 I did want to say, too, I found some typographical O
25 and grammatical errors, and I will send out a grammatical ACE-FEDERAL REPORTERS, INC.
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and typographical errata on another one.
I'm sorry for 2
that.
3 JUDGE KELLEY:
You are not the only one.
4 We said the Aamodt's filed a supplemental motion 5
.that other Parties were to respond, we said, by the 25th, 6
which is tomorrow.
Since we gave an extension of a few 7
days, at leat to Ms. Aamodt, and since I guess it was just 8
received, I would certainly extend it from tomorrow to next 9
Friday.
10 Is that satisfactory?
Does that give Parties 11 enough time?
12 Mr. Blake?
13 MR. BLAKE:
Yes.
If the Board wants responses, we 14 would like that amount of time until next Friday.
15 JUDGE KELLEY:
All right.
Thank you.
16 You had one response.
And if you want to file an 17 additional one, it would be the same date.
18 MR. GEPHART:
If the Board wants a response, we 19 responded to the first motion.
We don't see anything new in 20 this one.
21 JUDGE KELLEY:
I will leave that to you, if that 22 is your judgment.
We are not calling for a response.
It is 23 an opportunity to respond.
24 Mr. Maupin?
Mr. Burns, can you respond by the 25 25th?
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MR. BLAKE:
By the 2nd?
2 JUDGE KELLEY:
The 2nd.
I'm sorry that is-what 3
I'm changing.
The 2nd.
4 MR. BURNS:
Yes.
5 MR. MAUPIN:
Yes.
6 JUDGE KELLEY:
Okay.
7 MS. AAMODT:
Judge Kelley, I don't see where the 8
numerous employees response addresses the law.
9 I was asked to address the law, which I did, and I 10 really feel they have an obligation to respond as to how the 11 representation is within the code of professional 12.
responsibility.
13 JUDGE KELLEY:
Isn't that a judgment for them to-14 make?
I mean you have taken the offensive in the motion.
15 And we thought that a motion of that sort had to have a 16 legal basis.
And now you supplied that.
17 MS. AAMODT:
You are right.
It is their jeopardy.
18 JUDGE KELLEY:
It is their decision.
19 Well, I will go around the table.
20 Jack, anything else we ought to touch on here?
21 MR. GOLDBERG:
No.
22 JUDGE KELLEY:
Mr. Blake, anything else?
23 MR. BLAKE:
I have a couple.
24 I don't think we over talked about exclusion, the 25 off-limits business of the Stier --
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1 JUDGE KELLEY:
Oh, yes.
2 MR. BLAKE:
We would make a couple of observations 3
about that.
4 JUDGE KELLEY:
Sure.
5 MR. BLAKE:
One, we are prepared to go along with.
6 the Board's desires in this regard, and-if it causes 7
problems or we feel uncomfortable with it down the road, we 8
will bring it back to you.
But, at the moment we are 9
prepared.
10 I can see at least one complication which will 11 arise.
Mr. Stier is now regarded by GPU Nuclear as their 12 expert on leak-rate tests, and they are the ones that 13 invested their time and money to take a hard look at the 14 subject.
15 And when we get the NRR and OI reports, we would 16 expect to go to Mr. Stier and say, what are your views on 17 these reports.
Have him take a look.
18 We have taken that type of action in the past when 19 we have gotten NRC reports in subject areas, and what 20 results is a report back from Mr. Stier to the company, 21 normally a letter report, or maybe a memorandum.
But 22 normally, "here are my views on the NRC reports."
23 We would like very much to be able to do that 24 here, and as the company has done in the past when Mr. Stier O
25 has reviewed a document and provided his input to the ACE FEDERAL REPORTERS, INC.
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1 company, to share it with the parties in the proceeding.
2 But again, I would expect to do that.
And, in 3
order to do that there would have to be some contact asking 4
him to.
We are not talking about substance of his testimony 5
=in this proceeding.
But, I would want to alert the Board 6
that I would very much like to be able to do that, or at 7
least feel free to be able to do it.
8 We probably wouldn't make that judgment until we 9
see the NRC and see whether or not there is a need.-- see 10 their report and see whether there is that need.
But 11 certainly we would want to do that.
12 JUDGE KELLEY:
I understand what you are saying.
13 What about the option of the Board in effect 14 hiring Stier to do that and making his results available to 15 the Parties?
16 MR. BLAKE:
That would accomplish what we would 4
17 ask him to do, but we wouldn't have to pay for it.
18 JUDGE KELLEY:
That's right.
}
19 MR. BLAKE:
I can't argue with that.
20 JUDGE KELLEY:
Just a thought, not a proposal.
21 But I wondered what your reaction was.
22 MR. BLAKE:
That would be fine.
23 JUDGE KELLEY:
Other comments?
24 We discussed in our April 3 order, you will 25 recall, about the status of Stier and Rockwell, and whether ACE FEDERAL REPORTERS, INC.
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they should be --
2 MR. BLAKE:
I have a couple of others.
3 JUDGE KELLEY:
I'm sorry, go ahead.
4 MR. BLAKE:
One of them is, after Mr..Goldberg 5
spoke with Mr..Rockwell and proposed the Board witness 6
business, Mr. Rockwell wrote a letter to me.
I think he has 7
alerted Mr.:Goldberg that he was going to do this, either 8
call me or write a letter, the substance of which was, I 9
have been contacted by Goldberg, they want me to appear as a 10 witness.
I have done all this work for GPU.
Does the 11 company have any objection.
12 And I told Mr. Rockwell, I told him no, we did not 13 have an objection.
14 Finally, with respect to the payment of these 15 people, one way or another we are going'to wind up with -- I 16 think likely we will wind up with GPU employees becoming 17 technical Board witnesses, either in support of Rockwell, or 18 because you asked for them yourself, outright.
19 Por example, even Ms. Aamodt has suggested and i
20 probably doesn't realize what she has suggested, is that the 21 better witnesses would be expert from the Staff, and the 22 chief technical investigator used by Paogre and Benson.
l 1
23 Well, that is a GPU employee who supported Faogre and Benson 24 when they did that report.
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'l technical expert, even called by the Board, the Company 2
would anticipate paying that individual for his time 3
throughout, the time *' tat. he comes as a witness.
I-mean, 4
any attempt to avoid from an appearances standpoint, some
-5 of the difficulties, I don't think has been arrived at.
6-But, just from a pure accounting standpoint it is i
I 7
going to be -- as to when he started and when he stopped, 8
and when he was working for you and when he was working for 9
us.
We would just like to have it understood that those i
10 fellows come -- even if they are subpoenaed to come as Board 11 technical experts, we would expect to pay them throughout.
12 JUDGE KELLEY:
Okay.
13 MR. BLAKE:
That's all.
1 l
14 JU DGE ' KELLEY:
Thank you.
15 MS. AAMODT:
Judge Kelley, I do have a problem 16 with the Board sponsoring Mr. Stier, and paying his way and j
17 paying for his analysis of documents.
i 18 Mr. Stier is a GPU lawyer.
He is a lawyer who is 4
19 used'by New Jersey Power and Light, which is one of the GPU 20 subsidiaries.
And I just have a problem with Mr. Stier 21 doing analyses for the Board.
22 MR. BLAKE:
Before you answer whether that is i
j 23 correct or it isn't, it isn't correct, factually -- I would 24 like to address the question.
C:)
e 25 MS. AAMODT:
I can bring you documents which says t
i i
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that Mr. Stier --
2 JUDGE KELLEY:
One at a time.
3 MR. BLAKE:
Mr. Stier, who was employed by the 4
State of New Jersey as the head of their criminal 5
investigation unit, when he.left, associated himself with a 6
law firm in New Jersey, which one of the owners of TMI, 7
Jersey Central Power and Light, has used form time to time.
8 Mr. Stier, to my knowledge, has never entered an 9
appearance on behalf of the company, never acted as an 10 attorney for the company, and his only association with the 11 company has been as an investigator in this area and in 12 others.
13 MS. AAMODT:
And how long was he with the law 14 firm?
15 MR. BLAKE:
He was with the firm, I believe 16 associated with them for somewhere around a year or a year 17 and a half.
And is not associated with them now.
He has 18 his own shingle hung out.
19 I think he is largely doing investigations.
20 JUDGE KELLEY:
I might add in terms of whether we 21 might hire Stier to analyze Staff material.
We might.
We 22 might want to hire somebody else, in which case maybe you 23 would want to hire Stier.
But, it is just an option.
We 24 haven't decided on it.
And I must say that your objection O
25 and your problem -- I'm not quite sure I understand it, ACE FEDERAL REPORTERS, INC.
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1 Ms. Aamodt, because I know that you have vigorously 2
objected to the fact that GPU and Met Ed dire.ctly or 3
indirectly paying lawyers in the case.
4 MS. AAMODT:
Not paying them. Selecting them.
~
5 JUDGE KELLEY:
Well --
.6 MS. AAMODT:
That's the difference.
Paying them, 7
I don't have problems with.
I think they should pay the 8
attorneys of the employees that the employees select.
I 9
have problem with the selection.
10 Indemnification is provided under Pennsylvania 11.
Business Code --
12 JUDGE KELLEY:
Oh, you don't have any objection to l
\\-
13 the fact that Met Ed and GPU were indemnifying the lawyers 14 in this case?
15 MS. AAMODT:
I have objection to the lawyers that l
16 they are indemnifying, which are the lawyers who are also 17 company --
18 JUDGE KELLEY:
But the concept of indemnification, 19 you don't object to that?
l 20 MS. AAMODT:
No.
21 JUDGE KELLEY:
Okay.
I wasn't sure I understood l
22 that.
l l
23 MS. AAMODT:
I'm sorry.
The problem I have is 24 that the lawyers that they are indemnifying, are the lawyers O
25 who represent the company interests on other matters.
B l
l l
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JUDGE KELLEY:
I understand that point.
I thought 2
you had a problem with the payment arrangement.
3 MS..AAMODT:
Oh, no, I don't.
It would be better 4
not, but I would think it would be impractical, because that 5
would mean the employees may not be able to have 6
representation, which might be even worse.
7 JUDGE KELLEY:
Okay.
8 MS. AAMODT:
But, Judge, I do want to say this 9
about Mr. Stier.
10 The NRC found that his investigations were 11 unreliable.
12 JUDGE KELLEY:
Well, wait a minute, we have been 13 here now a long time and we talked about Stier a long time, 14 and Mr. Blake brought up the point saying he might want to 15 hire Stier, and that is what we talked about.
16 We are not going to go back into Stier on the 17 merits, I don't think, at this point.
What is the subject 18 you are interested in?
19 MS. AAMO DT :
What I am saying is that I understood 20 now the Board is hiring Stier.
21 JUDGE KELLEY:
The Board said that they might hire 22 Stier to analyze records, analyze the Staff report.
1 MS. AAMODT:
GPU went back several times with 24 Stier's investigations on another matter; the harrassment of 25 the engineers; and both times the NRC Staff said we cannot ACE-FEDERAL REPORTERS, INC.
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accept your Mr. Stier's investigation.
That it is not the 2
way the things are.
3 And.I consider that evidence of an unreliable
'4 investigator.
5 JUDGE KELLEY:
Well, then I suggest that you not 6
hire Stier.
But, why you should object to us hiring Stier, 7
I don't really grasph.
8 MS. AAMODT:
Because I believe that you are 9
representing the agency and --
10 JUDGE KELLEY:
Well, that is our judgment to make.
11 MS. AAMODT Of course it is your judgment.
I'm 12 sorry, sir, but I did want to point that out to you, that i
N -
13 there was that record of unreliability.
14 JUDGE KELLEY:
In your view.
Okay.
15 MS. AAMODT:
No.
The NRC's view.
16 JUDGE KELLEY:
Anybody's view.
17 Let's just go ahead.
o 18 Ms. Boast, Mr. Gephart, anything else?
1 19 MR. GEPHART:
No, sir.
20 MS. BOASTS No, sir.
21 JUDGE KELLEY:
Okay.
22 Mr. Burns, Mr. Maupin, anything else?
23 MR. MAUPIN:
No, sir.
1 24 MR. BURNS:
No, nothing.
O 25 JUDGE KELLEY:
Ms. Aamodt, anything else?
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MS.'AAMODT:
No.
2 JUDGE KELLEY:
Nothing further?
3 M S '. AAMODT:
No.
4 JUDGE KELLEY:
Okay.
We are sorry, again we 5
started so late.
6 Thank you very much. We are adjourned.
7 (Whereupon, at 3:10 p.m.,
the hearing in the 8
above-entitled matter was concluded.)
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ACE FEDERAL REPORTERS, INC.
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CERTIFICATE OF OFFICIAL REPORTER This is to certify that the attached proceedings before the UNITED STATES NUCLEAR REGULATORY COMMISSION in the matter of:
NAME OF PROCEEDING:
INQUIRY INTO THREE MILE ISLAND UNIT 2 - LEAK RATE DATA FALSIFICATION DOCKET NO.:
LRP PLACE:
BETHESDA, MARYLAND O'
DATE:
THURSDAY, APRIL 24, 1986 were held as herein appears, and that this is the original transcript thereof for the file of the United States Nuclear Regulatory Commission.
(sigt 2M(2/
d!
(TYPED)
MIMIE MELTZER Official Reporter ACE-FEDERAL REPORTERS, INC.
Reporter's Affiliation O