ML20235J088

Memorandum & Order (Denying Aamodts Motion for Reconsideration).* Denies Aamodts Petition to Reconsider Inquiry Into TMI-2 Leak Rate Data Falsification.Served on 870713

ML20235J088
Person / Time
Site:	Three Mile Island
Issue date:	07/10/1987
From:	Bright G, Carpenter J, Wolfe S Atomic Safety and Licensing Board Panel
To:	AAMODTS
References
CON-#387-4006 86-519-02-SP, 86-519-2-SP, LRP, NUDOCS 8707150391
Download: ML20235J088 (9)

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UNITED STATES OF-AMERICA NUCLEAR REGULATORY C0fEISSION

'87 JJL 13 All :43 Before the Presiding Board:

Sheldon J. Wolfe, Chairman h,S;;g ; a.:- , lii.i Glenn 0. Bright 6%" {

Dr. James H. Carpenter SERVED JUL 131987 In the Matter of Docket No. LRP ASLBP No. 86-519-02 SP INQUIRY INTO THREE MILE ISLAND UNIT 2 LEAK RATE DATA FALSIFICATION July 10, 1987 MEMORANDUM AND ORDER (Denying _,Aamodts' Motion For Reconsideration)

Pursuant to the Commission's Order and Notice of Hearing, CLI-85-18, 22 NRC 877 (1985), this Board held a hearing to address certain specified issues and issued its Recomended Decision on May 21, 1987, LBP-87-15, 25 NRC . On June 12, 1987, Marjorie and Norman Aamodt served a Motion For Reconsideration. On June 23, 1987, Mr. John Herbein served his response and on June 29, 1987, GPU Nuclear Corporation served its opposition.

MEMORANDUM Inasmuch as, contrary to 10 CFR 9 2.771, the Aamodts did not file their motion for reconsideration by June 1, 1987, and inasmuch as the Comission in CLI-85-18 did not specifically provide for reconsideration, we could reject the motion as being untimely filed 8707150391 070710 gDR ADDCK0500gG

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and/or unauthorized. However, as discussed below, we have proceeded to l

consider the motion for reconsideration and conclude that it is without meri t.

As their first argument, the Aamodts urge that the Board erred {

greatly in refusing to consider as evidence Attachment 2 and Figure 1 of Attachment 3 which had been attached to their proposed findings of fact dated February 2, 1987. We conclude that our recommended decision was clear (even to non-lawyers) and correct in explaining that such documents did not form part of the evidentiary record and thus would not be' considered as evidence because they had not been offered and admitted as exhibits prior to the close of the evidentiary record. We could not take official notice or give any weight to these documents since the other parties had not been given the opportunity to object to their admissibility, e.g., to challelige their authenticity, or to question their accuracy.

Furthermore, the Aamodts' complaint that, in an effort to inform and advise the Board, they had engaged in a time-consuming task to produce "important evidence" reflects their unfamiliarity with the record. We were well aware of the increasing identified leakage and we reject their intimation to the contrary. We cited Figure IV - 14 (Exhibit IA, Stier Report, Vol. IV (A),Section IV) as documentation of Since we have considered the untimely filed Aamodts' motion, we also considered Mr. Herbein's and GPU's opposing responses which were also untimely filed.

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\* i the identified leak rates (see_ Recommended Decision, page 91). We find nothing new in the Aamodts' materials and no basis for any reconsideration.

Even assuming, arguendo, that said documents had been admitted as exhibits prior to the close of the evidentie.ry record, we see no merit ,

whatsoever to the Aamodts' arguments that those two documents demonstrate that GPU's upper management, i.e., John Herbein and Gary Miller, had to have known that the reports of unidentified leakage that were made to the NRC during the last six weeks of TMI-2's operation had been falsified because they must have known of the " catastrophic" amount of identified leakage. The Aamodts do not provide any basis for this allegation. They do not cite and we are ilot uware of any support in the record for this proposition. We are mystified by their inferences from the fact that identified leakage increased to 5 gpm, which was well within the 10 gpn Tech Spec 3.4.6.2d limit. It is true that errors in the measurements of identified leakage will be reflected in the unidentified leakage values. The evidence of record indicates that the reactor coolant drain tank instrument had an accuracy of plus or minus 0.5% (Exhibit 1A, Stier Report, Vol. IV (B), section ix-A, at page A.26). At an identified leakage rate of 5 gpm, the effect on the unidentified leak rate estimate would be plus or minus 0.02S gpm, which would not " preclude" a valid measurement. The Board finds no technical bssis for the Aamodts' allegation.

Departing from the arguments that the two documents should have been officially noticed and/or given some weight, the Aamodts proceed to

briefly recite a melange of complaints. The first of these questions why the Boa.rd did not pursue the deficiencies in th. -=arements of steam generat'or leakage. The answer is that, similarly to the I

deficiencies in the sump surveillance, these deficiencies, while-reflecting discredit on the Operations Department, are not within the scope of our inquiry which was focused on manipulation or falsification of leak rate tests.

In the second paragraph on page 4, the Aamodts allege that the Board was inattentive to the witnesses' responses to our questions.

Th'ey postulate that the Board missed "the very important lead - . that identified leakage was not being measured (Tr. 4825,4156)". We find that the Aamodts suffer several misapprehensions. First, by definition, leakage is not classified as " identified" unless it has been measured.

The record at Tr. 4825 refers to leakage in the bonnets of some valves at the pressurizer base during the first two weeks of January,1979.

This leakage and its probable impact on the leak rate test was well known to the Board, since it is discussed in some detail in the Stier report (Exhibit 1A, Volume I, pp. 114-119). As this portion of the record shows, this leak (that could not be readily quantified) may have caused the operators to discard an unusually large number of test results. In contrast to the Aamodts' allegation, the Board was mindful of this situation and explored it repeatedly (Tr. 3654, 3834, 3949, 4108, 4272, 831and4829,forexample).

Secondly, the Aamodts' statement that "the employees were showing ,

i the Board'why

_h the leak rate tests had to be falsified ovcr the entire  ;

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1 operating life of Unit 2" is not true. The leak in January,1979 did make it more difficult for the operators to obtain a test result of less th.an 1 gpm, b'ut the leak was repaired when the plant was shut down on January 15, 1979. The Aamodts' sweeping generalization is incorrect but it is true that the leak in January contributed to the operators difficulties during that time period.

On pages 4 und 5, the Aamodts' claim that there is an inconsistency  !

in Mr. Hartman's testimony. We do not see an inconsistency. Mr. l Hartman's testimony that he discarded tests with the knowledge of his su'pervisors is in agreement with the extensive record on this issue (see Recommended Decision, pp. 125 134). However, discarding tests and manipulating tests by cperator actions during the tests are two i distinctly different activities. His testimony that he manipulated tests without tne knowledge of his supervisors is nct inconsistent with the testimony of other operators concerning their behavior and we see no basis for doubting Mr. Hartman's veracity.

In passing, we note that at page 5 of their motion the Aamodts, for whatever reason, misstate thet which is found in paragraph 12 at pp. t l

26-27 of our recomended decision. We did not decide that we need not reach the legal question concelning the employees' opinion as to what

! their jobs were. As paragraph 12 reflects, we agreed that we need not reach the 1,egal question of whether a violation of a Met Ed administrative procedure can form the basis of NRC enforcement action because we were conducting a factual inquiry. Further, after concluding i

that it was clear that various Het Ed administrative procedures had been l

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l violated which'had contributed to the problems with leak rate testing at' THI-2, we stated that to the extent such violations were relevant to the factual issues presented to us, we were making appropriate findings. )

On page 6 the Aamodts ask why we did not decide who was I

. responsible for the errors in the leak rate surveillance. We did not pursue that question because it was irrelevant to the issues that the Commission posed in establishing this inquiry.

At the botto:n of page 6, the Asmodts misstate the record. Gary Miller did not testify that he developed the Teak rate test procedure for Unit 2. In fact, Mr. Miller only testified that he was involved in the process of developing the Technical Specifications for TMI Unit 2 (Miller ff. Tr. 5039 at 15). The Aamodts appear not to appreciate that Technical Specifications and surveillance procedures are two very different things. Wo find no evidence that Mr. Miller was involved with development of the surveillance procedures or responsible for the errors therein.

Finally, the Aamodts request that we correct certain highly prejudicial statements in footnote 40 of our recommended decision end acknowledge their contribution to the proceeding. Initially we note i their egregious misstatement that in footnote 40 "The Board admits that the stipulation supporti; our claim that counsel for the employees, Mr.

McBride, was fraudulent: 'The literal language of the stipulation favors the Aamodts'." The Aamodts failed to note that this sentence in footnote 40 continued to state ". . . but the purpose and likely intent of the stipulation favors counsel for Mr. Floyd." The Board regarded l

i Mr. McBride's argument as to tha meaning of the stipulation as merely his effort to protect one of his clients, which he was obligated to do, There is noth'ing to indicate that fraud on his part was intended. In any event, the thrust of footnote 40 was that the question raised by the Aamodts was irrelevant to the issue which we were investigating, to wit, alleged leak rate manipulations and falsf fications.

Moreover, far from subjecting them to prejudicial, abusive treatment, the Board allowed greater latitude to the Aamodts than to any of the other parties in terms of meeting filirig dates, non-appearance at sc'heduled hearings, submission of questions to witnesses by telephone to the Board's secretary and other matters in recognition of their pro se, appearance and their representations of family troubles throughout the entire proceeding. The specific instance that they cite in their motion (p. 8) concerns their Response to Objection to Aamodt Petition for Leave to Intervene, dated March 19, 1986. Without setting forth the content of the response herein, the Board felt it necessary to caution the Aamodts as follows:

On March 19, 1986, the Aamodts filed a Response to Numerous Employees' objections to their intervention. We have decided that the balance of those objections and responses favors admission of the Aamodts as parties. The Aamodts' Response includes a groundless and intemperate attack on Counsel for the Numerous Employees, culminating in a request that they be excluded f rom the proceeding "on grounds of contempt." Aamodt Response, p. 9. See Aamodt Response at p. 2, line 8; p. 5, lines 1-3 and noteT, line 1. See also Tr. 48, lines 6-11.

There is no basis in the present recorl for any claim that Counsel for the Numercus Employees or any other counsel or party has shown contempt for the Board or, with the exception of the Aamodts' unnecessarily strident language in their March

.19, 1986 Response, acted in anything but a professional

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manner. In the future, we expect the Aamodts to ' refrain from intemperate attacks on other counsel or parties.

Memorandum and Order, March 26, 1986, p. 5, n. (unpublished).

On May 3, 1986, the Aamodts submitted an unauthorized pleading entitled " Errata, Aamodt Supplement, April 17, 1986," which contained some extremely serious and totally unsubstantiated charges against Counsel for GPUN (p.1, line 13-15) and Counsel for the Numerous Employees (p. 2, lines 15-19). In response to the pleading (ap;

,arently the second instance adverted to by the Aamodts), the Board stated:

. . . we cannot ignore the fact that, once agains the Aamodts have engaged in groundless and intemperate attacks against counsel in this proceeding, despite ou'r direction to refrain from such attacks in our Memorandum and Order of March 26, 1986, pp. 5-6, note. This time, we wish to make it unmistakably clear that no further such attacks will be tolerated. We are placing the Aamodts on notice that should they again violate our direction against such attacks, the Board will impse sanctions against them, including, for a serious violation, the sanction of permanent exclusion from this proceeding.

Memorandum and Order, July 16,1986,p.13(unpublished).

We see no need to continue further. Clearly, in our decision, we neither denigrated nor praised their contribution to the hearing. We were, however, properly critical of their groundless and intemperate attacks upon counsel and, in light of this conduct, we reaffirm that their participation was disruptive in this respect.

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- 9-ORDER The Aamodts' motion for reconsideration is denied.

Ti!E ATOMIC SAFETY AND LICENSING t0 Ann Ah10MI .

Ifidliiant. fe, thMfun ADMINISTRATE JUDGE

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h $h Glenn G. Bright Af f/

ADMIhlSTRATIVE JUDGE wm Y cWM A s H. Carpenter /

MINISTRATIVE JUDGE Bethesda, Mary'and a

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