ML20099L401

Response Opposing TMI Alert 841101 Motion for Leave to Present Testimony of V Gilinsky Re Dieckamp Mailgram Issue Due to Failure of Prefiling Written Testimony.Certificate of Svc Encl

ML20099L401
Person / Time
Site:	Crane
Issue date:	11/08/1984
From:	Trowbridge G GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20099L378	List: ML20099L375 ML20099L387 ML20099L401
References
SP, NUDOCS 8412010113
Download: ML20099L401 (14)

Text

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November 8,'1984 UNITED STATES OF AMERICA NUCLEAR REGULATORY. COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

)

)

METROPOLITAN EDISON COMPANY

)

Docket No. 50-289

)

(Restart Romand

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on Management)

(Three Mile Island Nuclear

-)

Station, Unit No. 1)

)

LICENSEE'S RESPONSL TO TMIA'S MOTION FOR LEAVE TO PRESENT TESTIMONY OF VICTOR GILINSKY ON DIECKAMP MAILGRAM ISSUE WITHOUT PREFILING WRITTEN TESTIMONY On November 1, 1984, TMIA moved the Licensing Board.for leave to present the testimony of former Nuclear Regalatory commissioner victor Gilinsky without prefiling written testimo-ny.

Licensee opposes the motion for the reasons stated below.

We address first the question of TMIA's failure to provide prefiled written testimony.

We next argue that TMIA has fa'iled to establish that Dr. Gilinsky's testimony would be both admis-sible and of probative value to the mailgram issue.

Finally, we argue that TMIA has failed to establish that Dr. Gilinsky's testimony would not be in violation of the Ethics in Government Act of 1978.

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A.

Failure to prefile written direct testimony.

In accordance with Section 2.743(b) of the Commission's Rules of Practice, the Licensing Board by its Memorandum and Order Following Prehearing Conference, dated September 19, 1984, directed all parties to prefile written' direct testimony on the mailgram issue by November 1, 1984.,TMIA has not only failed to prefile Dr. Gilinsky's testimony but has waited until November 1 to request an exception to the Board's requirement.

TMIA's failure to request an exception prior to the November 1 deadline is in itself grounds for denial of TMIA's request, particularly in view of the facts in this case.

Licensee's counsel first learned of the prospect that TMIA would seek to

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call Dr. Gilinsky without prefiled testimony on October 16, 1984.

On October 18, 1984, Licensee's counsel, Mr. Blake, wrote to TMIA's counsel, Ms. Bernabei, questioning the propri-ety of this approach and requesting confirmation of TMIA's final position on the matter.

(See Attachment.)

Mr. Blake's letter specifically advised TMIA's counsel that if TMIA's posi-tion remained as outlined on October 16, it was his intention to raise promptly with the Board the propriety of this ap-proach.

TMIA's counsel simply ighored Mr. Blake's letter.

TMIA's excuse for not prefiling Dr. Gilinsky's test.imony makes no sense.

As Licensee understands TMIA's motion, TMIA would have the Board understand that Dr. Gilinsky is prepared to have TMIA call him as a TMIA witness under a subpoena to be

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sought by TMIA,l/ but that because of his sensitivities as a recently departed commissioner who participated in decisions in the TMI-1 restart proceeding it is somehow inappropriate for him to prefile his testimony on TMIA's behalf.

The distinction is absurd.

TMIA argues that no party will be prejudiced by the pre-sentation of Dr. Gilinsky's testimony since TMIA has put all parties on notice of the " areas" in which it intends to ques-tion Dr. Gilinsky.

Identification of the " areas" of TMIA ques-tioning gives the other parties no indication of the substance of Dr. Gilinsky's testimony and provides no basis for the prep-aration of cross-examination or rebuttal testimony in advance I_

of the hearing.

The function of prefiled testimony is pre-cisely to avoid surprises at the hearing.

D.

Admissibility and probative value.

Section II of TMIA's motion outlines the " areas" in which it intends to question Dr. Gilinsky but totally fails to state the expected substance of the testimony.

We comment below with respect to each of the " areas" of testimony as to the 1/

There can be no question that Dr. Gilinsky is being called as a witness on TMIA's behalf.

TMIA's motion specifically requests that TMIA "be granted leave to call Dr. Gilinsky to testify on the Dieckamp Mailgram issue."

(TMIA Motion,

p. 2)

TMIA in fact predicates its entire motion on "the right (of every party] to present such oral or documentary evidence

. as may be required for full and true dis-closure of the facts."

(Id., p. 1)

TMIA also indicates that it intends to elicit Dr. Gilinsky's testimony through questioning of Dr. Gilinsky by TMIA.

(Id., p. 4) r likelihood that Dr. Gilinsky's testimony would prove admissible and of probative value on the mailgram issue.

1.

The May 7, 1979, site tour.

TMIA states that Dr.

Gilinsky was present at a site tour by the Subcommittee on En-ergy and the Environment of the House Committee on Interior and Insular Affairs on May 7, 1979, and that Dr. Gilinsky " spoke to Mr. Dieckamp about the pressure spike, reporting of the pres-sure spike to the Commission and reporting of information to the Commission."

TMIA fails to indicate in what way, if any, the conversation is relevant to Mr. Dieckamp's mailgram or to the question whether Mr. Dieckamp or anyone else interpreted the pressure spike in terms of core damage at the time of the -[

spike.

TMIA has failed to establish the admissibility and pro-bative value of Dr. Gilinsky's testimony in this area.

2.

Copy of mailgram to Dr. Gilinsky.

TMIA suggests that the receipt by Dr. Gilinsky (who was present at the May 7, 1979, tour and briefing,of the Udall Committee) of a copy of the mailgram gives Dr. Gilinsky a special understanding and in-sight into the interpretation of the mailgram.

The suggestion is simply a non sequitur.

3.

Subsequent discussions sith Mr. Dieckamp.

TMIA al-leges that "after the accident, Dr. Gilinsky had discussions with Mr. Dieckamp, and discussions with other licensee offi-cials of which Mr. Dieckamp was aware, concerning the reporting of the pressure spike, the hydrogen burn, and core damage to i

the NRC."

The discussions are not identified or described.

Again, TMIA fails to indicate in what way, if any, the discus-sions are relevant to Mr. Dieckamp's mailgram or to the ques-tion whether anyone interpreted the pressure spike in terms of core damage at the time of the spike.

To the extent the dis-cussions referenced by TMIA refer to colloqcys between Dr.

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Gilinsky and Mr. Dieckamp or other Licensee officials at the Commission's public meeting on immediate effectiveness on October 14, 1982, the transcript of.the meeting speaks for itself and Dr. Gilinsky's testimony is not needed.

4.

Reporting obligations and Commission reaction.

TMIA states that Dr. Gilinsky can testify as to Licensee's reporting" obligations and the information the Commission relied on in making decisions about the accident.

Licensee's reporting ob-ligations are not in issue and, if they were, NRC's regulations and license conditions are the best evidence of them.

TMIA states that Dr. Gilinsky can testify as to how the Commission would have reacted to information about key parameters of the accident if they had been promptly reported to the Commission.

Any such speculative testimony is irrele-vant to Mr. Dieckamp's state of mind or the accuracy of his i

mailgram.

C.

The Ethics in Government Act.

In its response, filed today, to TMIA's motion to admit t

the deposition of former Commissioner Peter A. Bradford as l.

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testimony, Licensee has explained the prohibitions and limita-l tions on testimony of former Nuclear Regulatory Commissioners.

Commissioner Gilinsky may testify only as to matters of fact and to occurrences within his personal knowledge.

The only areas identified by TMIA where such personal knowledge might be involved relate to alleged communications between Dr. Gilinsky and Mr. Dieckamp.

It is incumbent on TMIA to establish, which TMIA has not done, that there were communications within Dr.

Gilinsky's personal knowledge which are relevant to the mailgram issue.

D.

Conclusion.

For the reasons stated above the Licensing Board should deny TMIA's motion for leave to permit testimony of Dr.

Gilinsky on the mailgram issue.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE DJVJ/

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yporgp F. Trowbridge,f.C.

Counsel for Licensee Novemberjf,1984 Dated:

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Attachment SHAw. PITTMAN, PoTTs & TROWBRIDGE

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v.6L october 18, 1984 E.Y.!..

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(202)022-1084 Lynne Bernabei, Esq.

Government Accountability Project i

1555 Connecticut Avenue, N.W.

Suite 202 Washington, D.C.

20036 In the Matter of l

Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1) j Docket No. 50-289

Dear Lynne:

This will confirm my message to you yesterday that Mr.

j Lowe is available for deposition at 11:00 a.m. in Shaw, Pittman's offices on Friday, October 19, on the subjects dis-l cussed in yesterday's conference call with the Board Chairman, i

Please advise me as to the name of the officer before whom the deposition will be taken.

4 When we met the evening of October 16 to attempt to re-solve discovery differences, you advised me that you do not now expect to file prepared written testimony of Dr. Gilinsky prior to the hearing.

Rather, you expect to apply for a subpoena for l

Dr. Gilinsky to appear as a witness and that his testimony would first be available to the other parties when he appeared at the hearing.

As I indicated to you, I am surprised by this approach and regard it as unusual for NRC proceedings in other than adverse witness situations.

While Licensee had expected i

to forgo discovery related to Dr. Gilinsky in view of his late identification as a witness, that decision was based largely on our expectation that his testimony would be profiled to allow some preparation time.

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SHAw, PITTMAN. PoTTs & TROWBRIDGE

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Lynne Bernabei, Esq.

October 18, 1984 Page 2 Please advise me of TMIA's final position in this regard.

If that position is as you outlined, I' intend to raise promptly with the Board the propriety of this approach.

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Sincerely, Ernest L. Blake, Jr.

Counsel for Licensee ces Service List e

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,e November 8, 1984 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION r-BEFORE THE ATOMIC SAFETY AND LICENSING BOARD i

In the Matter of

)

)

METROPOLITAN EDISON COMPANY

)

Docket No. 50-289

)

(Restart Remand (Three Mile Island Nuclear

)

on Management)

Station, Unit No. 1)

)

CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Response to TMIA's Motion for Leave to Present Testimony of Victor Gilinsky on Dieckamp Mailgram Issue Without Prefiling Written Testimo-ny," dated November 8, 1984, were served upon those persons on the attached Service List by deposit in the United States mail, postage prepaid, or where indicated by an asterisk

(*), by hand delivery, this 8th day of November, 1984.

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/4 Ge6rge /F. Trowbridge,. PyC.

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Dated: November 8, 1984

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t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i

BEFORE THE ATOMIC SAFETY AND LICENSING SOARD In the Matter-

)

)

METROPOLITAN EDISON COMPANY

)

Docket No. Sa-289 SP

)

(Restart Romand on Management)

(Three Mile IsicPd Nuclear

)

Station, Unit No. 1)

)

s SERVICE LIST Nunzio J.

Palladino, Chairman Administrative Judge U.S. Nuclear Reculatory Commission John H.

Buck Washington, D.C.

20555 Atomic Safety & Licensing Appeal Board Thomas M.

Roberts, Commissioner U.S. Nuclear Regulatory Commiss;;r U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Washington, D.C.

20555 James K.

Asselstine, Commissioner Administrative Judge Christine N.

Kohl U.S. Nuclear Regulatory Commission Atomic Safety & Licensing Appeal Wa shington,

D.C.

20555 Board U.S.

Frederick Sernchal, Commissioner Nuclear Regulatory Commissic:

Washington, D.C.

20555 U.S. Nuclear Regulatory Commission Washington, D.C.

20555

• Administrative Judge Lando W.

Zeck, Jr., Commissioner -

Ivan W.

Smith, Chairman Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commiss;;r l

Washington, D.C.

20555 Washington, D.C.

20555 Administrative Judge

• Administrative Judge Gary J. Edles, Chairman Sheldon J. Wolfe Atomic Safety & Licensing Appeal Atomic Safety & Licensing Board Board U.S. Nuclear Regulatory Commissi r z U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Washington, D.C.

20555 l

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• Administrative Judge Mr. Henry D. Hukill j

Gustave A. Linenberger, Jr.

Vice President Atomic Safety & Licensing Board GPU Nuclear Corporation

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U.S. Nuclear Regulatory Commission P.O. Box 480 Washington, D.C.

20555 Middletown, PA 17057 Docketing and Service Section (3)

Mr. and Mrs. Norman Aamodt Office of the Secretary R.D.

5 U.S. Nuclear Regulatory Commission Coatesville, PA 19320 Washington, D. C.

20555 Ms. Louise Bradford Atomic Safety & Licensing Board TMI ALERT

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Panel 1011 Green Street U.S. Nuclear Regulatory Commission Harrisburg, PA 17102 Washington, D.C.

20555 Joanne Doroshow, Esquire-Atomic Safety & Licensing Appeal The Cnristic Institute Board Panel 1324 North Capitol Street U.S. Nuclear Regulatory Commission Washington, D.C.

20002 Washington, D.C.

20555

• Lynne Bernabei, Esq.

• Jack R.

Goldberg, Esq. (4) ver men Accountability Office of the Executive Legal g

1555 Connecticut Avenue U.S e ear Regulatory Commission Washington, D.C. 20036 washington, D.C.

20555 Ellyn R. Weiss, Esq.

Harmen, Weiss & Jordan Thomas Y.

Au, Esq.

2001 S Street, N.W., Suite 430 Office of Chief Counsel Washington D.C.

20009 Department of Environmental Resources Michael F. McBride, Esq.

505 Executive House LeBoeuf, Lamb, Leiby & MacRae P.O. Box 2357 1333 New Hampshire Avenue, N.W.

Harrisburg, PA 17120 Suite 1100 Washington, D.C.

20036 William T.

Russell Deputy Director, Division Michael W. Maupin, Esq.

of Human Factors Safety Hunton & Williams Office of NRR 707 East Main Street Mail Stop AR5200 P.O. Box 1535 U.S. Nuclear Regulatory Richmond, VA 23212 Commission Washington, D.C.

20555 l

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November 28, 1984 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

~

BEFORE THE A','QMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of

)

)

METROPOLITAN EDISON COMPANY

)

Docket No. 50-289

)

(Restart Remand (Three Mile Island Nuclear

)

on Management)

Station, Unit No. 1)

)

CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Reply to TMIA Motion for Directed Certification," dated November 28, 1984, were served upon those persons on the attached Service List by deposit in the United States mail, postage prepaid, or where indicated by an asterisk (*) by hand delivery this 28th day of i

November, 1984.

sadh

.snu Y Geope F. 'Frowbridge/P.C.

Dated: November 28, 1984 r

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

+

BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter

)

)

METROPOLITAN EDISON COMPANY

)

Docket No. 50-289 SP

)

(Restart Romand on Management)

(Three Mile Island Nuclear

)

Station, Unit No. 1)

)

SERVICE LIST Nunzio J. Palladino, Chairman

• Administrative Judge U.S. Nuclear Regulatory Commission John H.

Buck washington, D.C.

20555 Atomic Safety & Licensing Appeal Board Thomas M. Roberts, Commissioner U.S. Nuclear Regulatory Commissica U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Washington, D.C.

20555

• Administrative Judge James K. Asselstine, Commissioner Christine N. Kohl U.S. Nuclear Regulatory Commission Atomic Safety & Licensing Appeal Washington, D.C.

20555 Board Frederick Bernthal, Commissioner U.S. Nuclear Regulatory Commissict Washington, D.C.

20555 U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Administrative Judge Ivan W.

Smith, Chairman Lando W.

Zeck, Jr.e Commissioner Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission, Washington, D.C.

20555 Washington, D.C.

20555

• Administrative Judge Administrative Judge Gary J. Edles, Chairman Sheldon J. Wolfe Atomic Safety & Licensing Appeal Atomic Safety & Licensing Board Board U.S. Nuclear Regulatory Commiss10:

U.S. Nuclear Regulatory Commission Washington, D.C.

20555 l

Washington. D.C.

20555 1

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Administrative Judge Mr. Henry D. Nukill Gustavo A. Linenberger, Jr.

Vice President Atomic. Safety & Licensing Board GPU Nuclear Corporation U.S. Nuclear Regulatory Commission P.O. Box 480 Washington, D.C.

20555 Middletown, PA 17057 Docketing and Service Section (3)

Mr. and Mrs. Norman Aamodt Office of the Secretary R.D.

5 U.S. Nuclear Regulatory Commission Coatesville, PA 19320 Washington, D.C.

20555 Ms. Louise Bradford Atomic Safety & Licensing Board TMI ALERT Panel 1011 Green Street U.S. Nuclear Regulatory Commission Harrisburg, PA 17102 Washington, D.C.

20555 Joanne Doroshow, Esquire Atomic Safety & Licensing Appeal The Cnristic Institute Board Panel 1324 North Capitol Street U.S. Nuclear Regulatory Commission Washington, D.C.

20002 Washington, D.C.

20555

• Lynne Bernabei, Esq.

• nt Accountability

• Jack R.

Goldberg, Esq. (4)

Office of-the Executive Legal ro c

1555 Connecticut Avenue U.S c ear Regulatory Commission ashington, D.C. 20036 Washington, D.C.

20555 Ellyn R. Weiss, Esq.

Harmon, Weiss & Jordan Thomas Y. Au, Esq.

2001 S Street, N.W., Suite 430 Office of Chief Counsel Washington, D.C.

20009 Department of Environmental Resources Michael F. McBride, Esq.

505 Executive House LeBoeuf, Lamb, Leiby & MacRae P.O. Box 2357 1333 New Hampshire Avenue, N.W.

Harrisburg, PA 17120 Suite 1100 Washington, D.C.

20036 William T.

Russell Deputy Director, Division Michael W.

Maupin, Esq.

of Human Factors Safety Hunton & Williams Of fice of NRR' 707 East Main Street Mail Stop ARS200 P.O. Box 1535 U.S. Nuclear Regulatory Richmond, VA 23212 Commission Washington, D.C.

20555 r