ML20211D086

GP Miller Reply to Aamodt Proposed Findings of Fact (Submitted to Presiding Board in Form of Recommended Decision).*

ML20211D086
Person / Time
Site:	Three Mile Island
Issue date:	02/16/1987
From:	Hensley M HUNTON & WILLIAMS, MILLER, G.P.
To:
Shared Package
ML20211D058	List: ML20211D054 ML20211D086 ML20211D159 ML20211D174 ML20211D214
References
86-519-02-SP, 86-519-2-SP, LRP, NUDOCS 8702200321
Download: ML20211D086 (7)

Text

. .. .

e D: .: ' *: " ' ' ~ 9 f,)ff 4 PRC D. rs UT!L .~AC. . 4.1.m +._

00tKETEC us'!PC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 87 FEB 19 P12:24 BEFORE THE PRESIDING BOARD CFF .

00CJ .i In the Matter of )

)

INQUIRY INTO THREE MILE ) Docket No. 86-519-02 SP ISLAND UNIT 2 LEAK R..TE )

DATA FALSIFICATION )

GARY P. MILLER'S REPLY TO AAMODT PROPOSED FINDINGS OF FACT (SUBMITTED TO THE PRESIDING BOARD IN THE FORM OF A RECOMMENDED DECISION)

I.

Introduction This is Gary P. Miller's reply to Aamodt Proposed Findings of Fact (Submitted to the Presiding Board in the form of a Recommended Decision), dated February 2, 1987.1/

The fact that a particular point made in the Aamodt Findings is not specifically addressed here does not mean that Mr. Miller agrees with it.

1/ We refer to Aamodt Proposed Findings as "Aamodt F."

and to Mr. Miller's Proposed Findings of Fact and Conclu-sions of Law as " Miller F."; for example, " Miller F. 30" i refers to paragraph number 30 of Mr. Miller's Proposed Findings of Fact and Conclusions of Law.

0702200321 B70216 0 PDR ADOCK 05000 C

O -

9 II.

Recly to Aamodt Findinas 2, 10 and 22

1. Mrs. Aamodt asserts that all parties except the Aamodts were represented by legal counsel hired and reim-bursed by GPUN or its subsidiaries. Aamodt F. 2; Aamodt F. 10. Mrs. Aamodt further charges that "GPU lawyers were controlling all [ management] witnesses . . . . Aamodt F. 22.

Counsel for Mr. Miller would not reply to Mrs. Aamodt's allegations but for the persistence of her charge that all counsel, including counsel for Mr. Miller, have waivered in their professional responsibilities to their clients. Counsel for Mr. Miller was not hired by GPUN. See Affidavit of Michael W. Maupin at 2 (Mar. 3, 1986). Furthermore, the indemnification arrangement be-tween Mr. Miller and Metropolitan Edison has in no way af-fected counsel's independent judgment on behalf of Mr. Miller. See id.; Memorandum and Order (Concerning Mo-tion for Dismissal of Attorneys, Use of Prior Statements to Avoid Calling Witnesses and Notice of Telephone Conference Call) at 11 (July 16, 1986). Mrs. Aamodt appeared to rec-ognize this when she withdrew her objection to the indemni-fication arrangement between Mr. Miller (among others) and Metropolitan Edison. See Transcript of April 24, 1986 Prehearing conference at 201 (Aamodt).

9-7 The Presiding Board has previously ruled on similar Aamodt allegations. The Board stated in denying the Aamodts' March 14, 1986 Motion for Dismissal of Employees' Attorneys that the record of this proceeding reflected in-dependent representation by Mr. Miller's attorneys, among others; there was no suggestion of " company control." Mem-orandum and Order (Concerning Motion for Dismissal of At-torneys, Use of Prior Statements to Avoid Calling Witnesses and Notice of Telephone Conference Call) at 11 (July 16, 1986). The record of this proceeding since July 16, 1986 is likewise devoid of indications that GPUN or any of its subsidiaries controlled or attempted to control Mr. Miller or his attorneys. In short, the Aamodts have made an unfounded charge relating to the_ integrity of Mr. Miller and Mr. Miller's attorneys.

I V .-

! Reply to Aamodt Findino 21

. 2. Mrs. Aamodt argues that " plant management" became

" fully aware" of the " improper leak rate practices (after]

October 1978" as a result of, apparently, Mr. Haverkamp's October 18, 1978 inspection of TMI-2. Aamodt F. 21.

Mrs. Aamodt does not define what she means by " improper leak rate practices" nor does she provide transcript i

t' y citations to any witnesses' testimony other than Mr. Herbein's. The thrust of her contention is based not i

on the evidence developed in this proceeding, see Miller F. 17 through 20, but on the Aamodts' assertion that Mr. Herbein reviewed the LER, approved it, " based on what (he) had been told by (his) chain of command about the incident."

Tr. 5272 Herbein, ff. Tr. 5268 p.12.

i

, Aamodt F. 21.

t Mrs. Aamodt then asserts that " Messrs. Lawyer, Miller and Floyd" were " fully informed about the matter" because Mr. Herbein felt they were competent managers 2 / "and that the leak rate matter was their responsibility and of high priority. Tr. 5280-1 Herbein." Id.

Mrs. Aamodt's reading of the record is confused and confusing in at least two respects. First, Mr. Herbein testified that in the case of a typical LER, he relied on

" corporate licensing personnel with assistance from TMI 1

personnel" to formulate the follow-up report to the " prompt report" of a reportable occurrence. Herbein, ff. Tr. 5268

2/ Mrs. Aamodt is correct in her characterization of Mr. Herbein's opinion of Mr. Miller's abilities.

Mr. Herbein testified that " Gary (Miller] vas an energetic, committed man, totally committed to nuclear power and to his company and the way we tried to operate and do things

. at TMI. . . . he was a committed, dedicated guy who wanted to do it right . . ." Tr. 5303 (Herbein).

fg  ;

i r

at 11-12. He could not, however, recall whether he had any oral briefing on LER 78-62/lT. Tr. 5274 (Herbein). Be-cause of.the routine, but nonetheless important, nature of LER 78-62/lT, he may or may not have discussed it with the i l appropriate " technical people." Tr. 5273 (Kelley, Herbein). In any event, Mr. Miller was not in a concur-rence chain with respect to Licensee Event Reports. Tr.

)

i 4722 (Seelinger).  ;

1 Second, Mrs. Aamodt's characterization of ,

i j.

Mr. Herbein's oral testimony is misleading. Mr. Herbein did not testify that the " leak rate matter was their (Messrs. Lawyer, Miller and Floyd) responsibility and of

{

high priority." Mr. Herbein testified, beginning on page i

{ 5279, that he relied on the chain of command to ensure that I

proper corrective action was undertaken in response to LER l 78-62/1T. Specifically, Mr. Herbein opined that the task i

i of ensuring effective follow-up to LER 78-62/IT rested with the Supervisor of Operations. Tr. 5284 (Herbein).

l

! IV.

1 Repiv to Aamodt Findinas 23 throuah 26

3. Mrs. Aamodt asserts that "the most important inculpating Mr. Herbein and the other manag-evidence . . .

{

l ers is the testimony of the operators that Unit 2 was l,

i

j leaking . . . Tr.1063-4 Cole, Kirkpatrick and Stier.'

Aamodt F. 23. She also alleges that "the B Steam Generator was leaking." Id. Mrs. Aamodt argues that "[t]he manag-ers, to a man, could not have missed the fact that valid leak rate tests were not possible to obtain during this pe-riod and knew that continued plant operation was in viola-tion of technical specifications." Aamodt F. 26.E!

Mrs. Aamodt's Proposed Findings 23 through 26 are clearly erroneous for at least the following two reasons:

(a) Failure to Distincuish between Identified and Unidentified Leakace Messrs. Kirkpatrick, Rockwell and Stier testified that there was a significant amount of identified leakage at TMI-2 in early 1979. Tr. 1063-64. Mrs. Aamodt has not al-leged that this identified leakage exceeded the ten gallon per minute limiting condition for operation set forth in Technical Specification 3.4.6.2(d). Exhibit 1-A, Stier Vol. V(B), Tab 14 at 4-15. Nor has anyone else.

J/ Hrs. Aamodt has disregarded the Board's order that parties make specific reference to the record in support of their findings. Tr. 5326-27 (Kelley). Mrs. Aamodt has provided not a single citation to the evidence in support of Aamodt F. 26. We know of no allegation by anyone that Mr. Miller, a " manager," knew in 1978 and 1979 that unidentified loak rates of one gallon per minute or less j'I would be more difficult to obtain during periods of high identified leakage. .

W>

e ,

g e'

(b) Steam Generator Leakaae is identified Leakage Identified leakage is defined to include "[rleactor coolant system leakage through a steam generator to the secondary system." Id. at 1-4. See Tr. 502-503 (Wermeil).

i The limiting condition for operation for

" primary-to-secondary leakage through steam generators" is one gallon per minute. Id. at 4-15. Mrs. Aamodt has not alleged that the "B" steam generator leak to which she re-4 fers in paragraph 23 was either (a) unidentified leakage or 1

(b) in excess of the one gallon per minute limiting condi-

. tion for operation.

l Respectfully submitted,

GARY P. MILLER I  ;

QAA&- . /

i Maria C. Hensley, g l

Counsel for Gary P. Miller

! Of Counsel

Michael W. Maupin '

i Maria C. Hensley I

• i HUNTON & WILLIAMS i P.O. Box 1535

Richmond, Virginia 23212 Dated: February 16, 1987 1

i i l i

-___ _ _ ___ _ __ _ _ ___