ML20211D159

Motion to Disregard Attachment 1 to Aamodt Proposed Findings of Fact (Submitted to Presiding Board in Form of Recommended Decision) & Any Aamodt Findings Based on Attachment 1.*

ML20211D159
Person / Time
Site:	Three Mile Island
Issue date:	02/16/1987
From:	Hensley M HUNTON & WILLIAMS, MILLER, G.P.
To:	NRC COMMISSION (OCM)
Shared Package
ML20211D058	List: ML20211D054 ML20211D086 ML20211D159 ML20211D174 ML20211D214
References
86-519-02-SP, 86-519-2-SP, LRP, NUDOCS 8702200338
Download: ML20211D159 (6)

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UNITED STATES OF AMERICA 00txETED N U.f r NUCLEAR REGULATORY COMMISSION BEFORE THE PRESIDING BOARD 'g7 pg jg g UTf -

In the Matter of ) CUD C '

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INQUIRY INTO THREE MILE ) DOCKET NO. LRP ISLAND UNIT 2 LEAK RATE DATA ) ASLBP NO. 86-519-02 SP FALSIFICATION

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Motion to Disregard Attachment 1 to Aamodt Proposed Findings of Fact (Submitted to the Presiding Board in the Form of a Recommended Decision) and Any Aamodt Findinos Based on Attachment 1 Gary P. Miller, by his attorneys, submits this Motion to Disregard Attachment 1 to Aamodt Proposed Findings of Fact (Submitted to the Presiding Board in the Form of a Recommended Decision) and Any Aamodt Findings Based on Attachment 1, specifically those sentences of Aamodt find-ings 14 and 23 referencing Attachment 1, for the following reasons:

1.

Attachment 1 Is Not Part of the Record of This Proceedino The Presiding Board ordered all parties to submit findings containing " exact citations to the transcript of record and exhibits in support of each proposed finding."

Tr. 5326-27 (Kelley, J.). Despite ample opportunity,1!

1/ See, gig 2, March 7, 1986 Prehearing Conference at Tr.

26-31; Memorandum and Order (Ruling on Petitions to Inter-0 22oog3DggggI o (Continued) o

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, Mrs. Aamodt did not request prior to or during the hearing that Attachment 1 be made a part of the record. It was not, therefore, part of the record when it was closed on November 12, 1986. Tr. 5349 (Kelley, J.). See ff. Tr.

5221 (List of Exhibits). ,

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II.

l Attachment 1 Does Not Meet the Reauirements for " official Notice" Mrs. Aamodt requests the Presiding Board to "take of-ficial notice of a Preliminary Notification of March 28, l 1979" for the specific purpose of establishing that there .

vas "a known previous primary to secondary leak in Steam Generator B." Aamodt Finding 14; Att. 1. Using the l (Continued From Previous Page)

I vene, Confirming Certain Procedural Matters and Addressing I

Motion for Dismissal of Employees' Attorneys) at 9-10 j (March 26, 1986) (includes statement that "in the course of ,

4 the hearing, the Board or the parties may propose other documents for inclusion in the record"); Witnesses and Doc-uments Proposed by Aamodts (April 16, 1986); Aamodt Re-

! sponse Concerning Open Items From April 24 Conference at 2

! (May 2, 1986); Memorandum and Order (Proposed Schedule for c

! and Rulings Following Second Prehearing Conference)

Hearing at 2-3 (May22, 1986); Aamodt Reponse to NRR Report at 4 (June 13, 1986); Aamodt Response to 01 Report Motion for l Summary Disposition at 3-4 (June 30, 1986); Tr. 3953, lines i 18-23; Tr. 3958, lines 19-20; Tr. 3954-55 (October 16, j 1986 Telephone Conference Call).

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. Federal Rules of Evidence as a guide,E/ we treat Mrs.

Aamodt's request as, first, a request for an exception to Federal Rule of Evidence 803(8) and, second, as a request

~for the Presiding Board to take judicial notice of " facts" contained in Attachment 1.

A. Federal Rule of Evidence 803(8)

Federal Rule of Evidence 803(8) provides a hearsay ex-ception for:

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . . ( C ', in civil actions and proceedings and against the Government in criminal cases, factual findings re-sulting from an investigation made pur-suant to authority granted by law, unless the sourc<rs of information or other circumstances indicate lack of trustworthiness.

2/ While the Federal Rules of Evidence are not directly applicable to NRC proceedings and would not, of course, be applicable to this legislative style proceeding, NRC adju-dicatory boards often look to those rules for guidance.

See Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 347, 365 n.32; Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC 453, 457 (1982).

We think the Commission's directive that "only relevant, material, and reliable oral and documentary evidence which is not repetitious should be admitted into evidence" allows the Presiding Board to use the Federal Rules of Evidence to guide it in determining the relevancy, materiality and reliability of proposed evidence. See Inouiry into Three Mile Island Unit 2_ Leak Rate Data Falsification, CLI-85-18, 22 NRC 877, 882 (1985).

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, t Attachment 1 was prepared, apparently, on the morning of March 28, 1979. It is a oreliminary notification writ-ten by some unknown person (Klinger? Nolan? Bryan?) to, ap-parently, the NRC Commissioners. The information contained in Attach.ent I was written "as initially received (from some person unidentified in Attachment 1] without verifica-tion or evaluation and (was] all that (was] known by IE staff on this date." Att. 1. Attachment 1 indicates on its face a lack of trustworthiness. It should not, there-fore, be relied upon as support for the Aamodt findings.

B. Judicial Notice Federal Rule of Evidence 201 permits a judge judi-cially to notice a fact if the fact is one not subject to reasonable dis-pute in that it ls either (1) generally known within the territorial jurisdic-tion of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

Egg 5 328 McCormick on Evidence at 920 (1984).

Mrs. Aamodt has not shown that Steam Generator B leak-age was generally known prior to March 28, 1979 or that it was a matter of common knowledge among " reasonably intelli-gent people in the community." Id2 Indeed, it appears that the steam generator leak that Mrs. Aamodt wishes to

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' have established as an indisputable fact may not have been A Report to the Commis-I a leak. Egg Three Mile Island

sioners and to the Public, Vol. II at 663 (" Assumption of 1

leak in steam generator (OTSG B] cannot be supported by later information"). Nor does it appear that those " facts" contained in Preliminary Notification 79-67 are capable of i accurate and ready demonstration for the reasons set forth i

in II.A., above.

III.

Whether There was-Leakage Through Steam Generator B is Irrelevant to the Issues Set Forth in the Commission

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Order Establishina the Present Proceedina The present proceeding was instituted to develop the j facts surrounding leak rate falsification at THI-2 from February 2, 1978 until March 28, 1979. Incuiry into Three -

t Mile Island Leak Rate Data Falsification, 22 NRC at 880.

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The Commission limited the proceeding to issues surrounding unidentified reactor coolant system leakage. Egg id. at 880-881. Attachment I refers to what is, under the THI-2 Technical Specifications, identified leakage.

The TMI-2 Technical Specifications define identified .

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leakage to include t

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e a Reactor coolant system leakage through a steam generator to the secondary side.

Exhibit 1-A, Stier Report, Vol. V(B), Tab 14 at 1-3 and 1-4. Technical Specification 3.4.6.2 places a one gallon per minute limiting condition for operation "on primary-to-secondary leakage through steam generators."

Id. at 3/4 4-15. Attachment 1 and any findings predicated on Attachment 1 should, therefore, be excluded because (a) steam generator leakage is identified leakage and, alter-r nately, (b) there is no evidence that the steam generator

. leak exceeded the applicable limiting condition for op-eration.

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Respectfully submitted, GARY P. MILLER  !

U AA1 0 Y l d x 0d>

Marla C. Hensley, j Counsel for Gary P. Miller Of Counsel

Michael W. Maupin

!, Maria C. Hensley i

j HUNTON & WILLIAMS P.O. Box 1535

! Richmond, Virginia 23212 Dated: February 16, 1987 i

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