ML20211K195
| ML20211K195 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 11/12/1986 |
| From: | Voigt H LEBOEUF, LAMB, LEIBY & MACRAE, METROPOLITAN EDISON CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1508 LRP, NUDOCS 8611170095 | |
| Download: ML20211K195 (10) | |
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UNITED STATES OF AMERICA DOLMETED US"C NUCLEAR REGULATORY. COMMISSION BEFORE THE PRESIDING BOARD
'86 NOV M' p t.05 CFFici, m
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In the Matter of
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INQUIRY INTO THREE MILE ISLAND
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Docket No. LRP UNIT 2 LEAK RATE DATA
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FALSIFICATION
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MOTION OF THE EMPLOYEES TO DISMISS AAMODTS AS PARTIES
Background
On February 8, 1986, Marjorie M. Aamodt filed with the Presiding Board a Petition for Leave to Intervene ("Aamodt Petition") pursuant to the Commission's Order and Notice of Hearing issued on December 18, 1985 (" Order").
CLI-85-18, 22 N.R.C. 877 (1985).
The Order directed the Board to grant a petition to intervene upon a showing that the petitioner had an interest that may be affected by the proceeding and would likely contribute to the development of an adequate record.
Order at 7.
On February 25, 1986, the Employees filed a response opposing the Aamodt Petition (" Response").
Therein, the Employees argued that because none of the issues set for hearing in this inquiry addresses a currently significant safety concern, the Aamodts lacked an interest that could be affected by the proceeding.
The Employees also argued that the Aamodts' familiarity with the record in the Three Mile Island 8611170095 86111 PDR ADOCK 05000 20
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t Unit No. 1 restart hearing did not demonstrate that they could contribute to the record in this proceeding.
Response at 2-4.
On March 3, 1986, the Aamodts filed a document purporting to supplement their petition to intervene, and on March 19, 1986, they filed a reply to the Response, which, inter alia, moved the Board to dismiss the Employees' attorneys on the grounds of
" contempt".
On March 26, 1986, the Presiding Board issued a Memorandum and Order
(" Memorandum") that granted the Aamodts' petition to intervene.
Therein, the Board ruled that the Aamodts "have made a minimally acceptable showing on the
' interest' standard."
Memorandum at 3.
The Board also stated that "the Aamodts' combination of background on leak rate matters and experience with NRC proceedings make it likely that they can contribute to this proceeding."
Memorandum at 4.
Experience has shown, however, that the Aamodts have utterly failed to contribute to the record of this proceeding and have been conspicuous by their absence at the hearing.
The Employees therefore respectfully move that the Presiding Board l
issue an order dismissing the Aamodts as parties from this proceeding.
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Argument I.
THE AAMODTS HAVE FAILED IN THEIR OBLIGATION AS PARTIES TO CONTRIBUTE TO THE RECORD.
This inquiry is a unique proceeding.
In its Order, the Commission stated that the purpose of the proceeding was to develop the facts surrounding alleged leak rate data falsification.
22 N.R.C.
at 880.
To that end, the hearing is in a legislative, not an adjudicatory, format, and is not subject to 10 C.F.R. Part 2, Subpart G, with some limited exceptions not relevant herein.
Id. at 882.
Normal discovery procedures are not available to the parties.
The Commission specifically noted that the " hearing itself [shall] serve as l
the fact-finding mechanism."
Id.
This unusual format and purpose inform the standards articulated by the Commission for granting leave to intervene.
In a licensing hearing subject to Part 2, a petitioner seeking to intervene need only demonstrate an interest affected by the proceeding.
10 C.F.R. S 2.714.
Here, nowever, for this legislative hearing, the Commission saw fit to emphasize a second criterion for intervention:
the ability to contribute I
to the record.
This additional requirement for intervention is logical given the nature of this inquiry.
Without discovery, and with the NRC trial staff not a party to the proceeding,
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22 N.R.C.
at 882, the parties are under a greater burden than normal to assist the decisional authority by contributing to the development of an adequate record.
Indeed, implicit in the Commission's second criterion for intervention is the obligation of the intervenor to participate actively on a continuing basis in developing the record of the proceeding.
l When the Presiding Board analyzed the Aamodts' purported showing of their ability to contribute to the record, it found significant that the "Aamodts were active participants in various aspects of the TMI Restart proceeding."
Memorandum at 4 (emphasis added).
It also noted with approval that Mrs. Aamodt had attended the prehearing conference in this proceeding.
Id.
The Board thus implied that active participation in this proceeding is inexorably linked to becoming -- and continuing to be -- a party to this fact-finding inquiry.
Indeed, the Board specifically noted that the Aamodts' ability to contribute to the record compensated for their marginal showing on the "relatively less i
important ' interest' standard."
Id. at 4-5.
The Employees submit that the Aamodts have failed in l
their implicit obligation as parties to this proceeding to contribute to the record.
The Aamodts have not attended a single day of the hearing.
They have not sent representatives in their stead.
A party who fails to attend a hearing can hardly be said to be contributing to the development of a i
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record in that hearing.
Indeed, the Aamodts have only contributed obscurity and confusion.
A large number of the questions for the witnesses submitted by the Aamodts have been rejected by the Board.
Judge Kelley has noted on the record that one of the Aamodts' questions was not understandable.
Tr. 1879.
Other questions were successfully objected to by the Employees' counsel as contrary to the record.
Tr. 2026.
Still others involved what Judge Bright termed " tasteful editing" of the prefiled testimony.
Tr. 2815-16.
Most recently, the Aamodts submitted, and the Board rejected, a question that contained a reference that would violate an outstanding order of the Commission.
Tr. 5008.
Moreover, the Aamodts have not, to the best of the knowledge of the Employees' counsel, purchased a transcript of the hearing or borrowed a copy for their use.
Under such circumstances, any proposed findings and conclusions that the Aamodts may attempt to file with the Board could not possibly be based on any familiarity with the record in this proceeding.
They could only be based on the Aamodts' acknowledged familiarity with the restart hearing -- a completely separate proceeding involving other issues -- or on some of the technical reports admitted as evidence.
Under the NRC's rules of procedure governing licensing hearings, petitioners can be denied party status for failing to file a list of contentions and reasonably specific bases for
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s those contentions.
10 C.F.R. S 2.714(b).
As noted above, this legislative hearing is not subject to these rules.
- However, the Commission's policy placing affirmative responsibilities on intervenors is still applicable here.
Parties have some duty to participate minimally in an NRC hearing subject to Part 2.
Where, as here, the Commission has specified that the hearing is to be a fact-finding inquiry without discovery or cross-examination, and that individuals seeking to become parties must demonstrate not only that they are affected by a proceeding, but also that they can contribute to the record, this duty evolves into an implicit obligation to participate I
actively throughout the entire course of the hearing.
The Aamodts' failure to do so is good cause for their dismissal from the proceeding.
II.
DISMISSAL IS AN APPROPRIATE SANCTION IN THIS CASE.
Dismissal of the Aamodts is in accordance with Commission policy and practice.
In the Statement of Policy on Conduct of Licensing Proceedings,l' CLI-81-8, 13 N.R.C.
- 452, 454 (1981), the Commission stated "[f}airness to all involved in NRC's adjudicatory procedures requires that every participant fulfill the obligations imposed by and in l
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Admittedly, this Statement of Policy does not j
govern this proceeding.
It is nonetheless a useful guide for j
the Board's management of this hearing.
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c accordance with applicable law and Commission regulations."
The Commission went on to note that "[w] hen a participant fails to meet its obligations, a board should consider the imposition of sanctions, [ including] dismiss [ing] the party from the proceeding."
Id.
The Commission specified that in selecting the appropriate sanction, the Board should consider, inter alia, the relative impectance of the unmet obligation, the potential for harm to other parties, and whether the offending behavior is an isolated incident or part of a recurring pattern.
Id.
First, the importance of contributing to the record has already been demonstrated.
Second, the Aamodts' failure to attend even one day of the hearing clearly demonstrates that their conspicuous absence is not an isolated incident.
Finally, there is a clear potential for harm to the other parties.
Unless the Aamodts' participation is now terminated, they will be expected to submit proposed findings and conclusions along with the other parties.
Having not seen and heard the witnesses, and without access to a complete transcript, the Aamodts' findings will certainly be inaccur&te and confused, just as many of their questions have been.
This will require the other parties -- and eventually the Board --
to sift through the record to clarify or rebut improper findings.
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The central issue in this proceeding is individual responsibility.
It would be unfair to the Employees to permit the Aamodts, who passed up the opportunity to see and hear the witnesses, to evaluate the candor and credibility of each individual.
Conclusion For the foregoing reasons, the Employees respectfully request that the Board issue an order dismissing the Aamodts as parties to this proceeding.
Respectfully submitted, LeBOEUF, LAMB, LEIBY & MacRAE By (DM4
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Of Counsel:
1333 New Hampshire Avenue, N.W.
Michael F. McBride Suite 1100 Molly S.
Boast Washington, D.C.
20036 James W.
Moeller (202) 457-7500 Marlene L.
Stein C. Christopher Sprague Smith B.
Gephart KILLIAN & GEPHART Jane G.
Penny 216-218 Pine Street Box 886 Harrisburg, PA 17108 (717) 232-1851 November 12, 1986 Attorneys for Numerous 1978-79 Employees of Metropolitan Edison Company 1
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UNITED STATES OF AMERICA
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NUCLE AR REGULATORY COMMISSION
'm, BE FORE THE PRESIDING BOARD
'86 NOV 14 P1 :(Mi CFFt.
00C/:
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In the Matter of
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INQUIRY INTO THREE MILE ISLAND
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Docket No. LRP UNIT 2 LE AK RATE DATA
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FALSIFICATION
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CERTIFICATE OF SERVICE I hereby certify that I have served copies of " Motion of the Employees to Dismiss Aamodts as Parties" by hand delivery on November 12, 1986, or, as indicated by an asterisk, by deposit in the United States mail, first class, postage prepaid on November 12, 1986, or, as indicated by two asterisks, by hand delivery on November 14, 1986, to the following persons:
Administrative Judge James L.
Kelley, Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Administrative Judge Glenn O. Bright Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Administrative Judge James H. Carpenter Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
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$N Mary E. Wagner, Esq.
Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Docketing and Service Branch (3)
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Ernest L. Blake, Jr., Esq.
Shaw, Pittman, Potts & Trowbridge 2300 N Street, N.W.
Washington, D.C.
20037 James B.
Burns, Esq.
Isham, Lincoln & Beale Three First National Plaza Suite 5200 Chicago, IL 60602 Michael W. Maupin, Esq.
Hunton & Williams P.O. Box 1535 Richmond, VA 23212 Ms. Marjorie M. Aamodt 200 North Church Street Parkesburg, PA 19365 Ms. Marjorie M. Aamodt P.O. Box 652 Lake Placid, NY 12946 C...a. u.... >
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Jame)s W.
Moeller f
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