ML20206S923

Aamodt Response to Voigt Ltr of 870403.* Voigt Argument That Present Leak Rate Hearing Part of Restart Proceeding Utter Nonsense.Related Info & Svc List Encl

ML20206S923
Person / Time
Site:	Three Mile Island
Issue date:	04/15/1987
From:	Aamodt M, Aamodt N AAMODTS
To:	Atomic Safety and Licensing Board Panel
References
CON-#287-3156 CLI-85-2, LRP, NUDOCS 8704230076
Download: ML20206S923 (9)

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5754 UNITED STATES OF AMERICA COCMETED fCCLEAR REGJLA'IORY C0ff!ISSION 'J3?AC BEFORE THE PRESIDING BOARD 17 APR 20 All:11

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In the Matter of y CCCPU":

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) Docket No. LRP INQUIRY IN'IO 'IEREE MILE ISLAND UNIT 2 LEAK RATE DATA FALSIFICATION )

) April 15, 1987

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AAMOI7T RESPONSE 'IO VOIGT LETTER OF APRIL 3,1987 By letter of April 3,1987, Harry H. Voigt, one of the counsel of the Numerous Employees, responded to the Aamodts' motion of March 27, 1987. The Aamodts had asserted in their motion that counsel for the Numerous Employees deceived the Board concerning the effectiveness of an NRC order. As a result the Board ruled against a question the Aamodts had submitted for James Floyd, a witness. Voigt, in responding, made various unwarranted attacks on the Aamodts. Voigt also argued that the Aamodts bear the burden of proving that the NRC order is no longer in effect. Although the Aamodts believe that Voigt's response does not warrant their consideration, they, nevertheless, are providing the following evidence and arguments which should establish once and for all the soundness of their motion.

1. The NRC order in question was one which put into effect a stipulation among the parties and counsel in the 'IMI-1 Restart Proceeding to protect the identity of employees under investigation for cheating on

• NRC licensing examinations. Judge Gary L.Milho111n, the Special Master who presided over the Reopened Proceeding on cheating, stated as follows in the order putting the Stipulation in effect:

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It is hereby ordered by Gary L. Milho111n, Administrative Judge and Special Master that for the duration of these proceedings all parties signatory to the attached Stipulation will be bound thereby and subject thereto. Any violations of said Stipulation should be reported to Judge Milhollin, and may be dealt with in  ;

any manner by Judge Milhollin pursuant to the enforcement powers invested in him by the Atomic Safety and Licensing Board.

This order, which was provided as Attachment 1 to the Aamodt motion, showed on its face that the Stipulation was only in effect "for the duration of these proceedings".and identified "these proceedings" as Docket No. 5--289, (Restart), (Reopened Proceeding). The case could be made, since the order was specially addressed to the " Reopened Proceeding" on cheating and since Judge Milho111n presided over that single hearing in the Restart Proceeding and is the only judge named in the order, that the order simply provided the Stipulation for the duration of the " Reopened Proceeding" on cheating.

In any event, the Restart Proceeding was formally closed in February of 1986, as stated in the Aamodt motion.

Therefore, the Stipulation providing confidentiality to employees under investigation in the Restart Proceeding was no longer in force after February 1986, at the very latest.

Voigt's arguments that the present hearing -- the Leak rate hearing --

is a part of the Restart Proceeding (because "the Aamodts themselves repeatedly urged that an inquiry into leak rate practirms be conducted prior to the restart of 'INI-1" and because "the Comission insittuted this proceeding as a collateral follow-on to the restart proceedings") are utter nonsense. The Aamodts lost their battle to keepthe leak rate hearing in the Restart Proceeding. The Comission instituted the l'eak rate proceeding as an entirely separate proceeding:

...The Comission hasaiso decided to institute a separate proceeding .

on the Hartman allegations...CLI-85-2, p. 93. Also see CLI-85-18.

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'D Voigt was one who had expressly acknowledged the separateness of the leak rate proceeding and who, over a year ago, attempted to use this fact to his advantage in opposing the petition of the Aamodts to intervene in this proceeding. Voigt stated in a document he signed and served on behalf of the Numerous Employees on February 25, 1986:

'Ihe interest of the Petitioner (Aamodt) in this proceeding is merely that of an intervenor in the 'IMI-1 restart proceeding.

Such an interest is an insufficient basis for intervention in an inquiry of a historical nature.

.......... the Comission ultimately reversed the Appeal Board and decided to institute the present proceeding separate and apart from the 'IMI-1 restart proceeding. CLI-85-2, N.R.C. at 305.

Voigt stated the above on pp. 3 and 4 of " Response of Numerous 1978-9 Employees of Metropolitan Edison Company to Aamodt Petition for Leave to Intervene", February 25, 1986. Thus, Voigt's arguments are not only incorrect, they are also insincere. (The insincerity of Voigt's arguments is troubling in view of his role as counsel to the employees who testified in this proceeding)

Voigt's argument, that the stipulation "does not say that the stipulation is not binding after the proceedings have been completed",

is strained. Voigt is reaching. Voigt has apparently forgotten (or chooses to forget) that the stipulation was negotiated,* allegedly,'to protect the innocent during the lengthy period of the hearing and subsequent deliberations. To continue the Stipulation past that point only protects the guilty. In fact, the continuation harms the innocent:

As long as they are not separated from the guilty, the aura of guilt remains. The Aamodts were fully in agreement with GPU counsel that w

reputations could be " smeared" and comunity ridicule could unfairly affect the innocent without protection of the identities of those under .

investigation. On this basis, the Aamodts supported the stipulation and

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signed it. They never supported a continuation of the stipulation to shield the guilty.

2. Voigt's demand for the Board's action to expunge the Aamodts' motion of an attachment containing two newspaper articles is ridiculous.

The Board has no authority to protect the identity of "0" since the NRC order is no longer in effect. Voigt's attack of the Aamodts for providing the newspaper articles was not warranted. The newspaper articles are in the public domain and were provided to demonstrate that "O's" identity became known prior to the time the NRC order was no longer effective.

(Hence, in the case of "0", as in the case of the other person named in the Aamodt question, James Floyd, the question of protection of identity was, in fact, moot.)

The Aamodts had nothing whatsoever to do with placing "O's" name in public view prior to the time the NRC order was no longer effective. While Voigt cannot know that, he cannot presume otherwise.

Voigt is aware of the Aamodts' consistent regard for the dignity of the employees and their predicament as employees of a company that either does not have its act together or does not want to have its act together. The Aamodts opposed the criminal prosecution of "0" proposed by the Special Master unless the company would stand for trial on the same charge (since the company permitted and may have encouraged and condoned cheating on company tests). The Aamodts opposed the Commonwealth's demand for the resignations of several operators and an instructor as a resolution to the cheating episode. See Aamodt Filings, Docket 50-289, January 15, 18, March 3, May 24, August, 1982. Voigt acknowledged, in his coments concerning the Aamodts participation in this hearing during the first pre-hearing conference,'that the Aamodts have little interest

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- in blaming the employees where there is evidence of the culpability of the ccupany.

'Ihere is no justification for Voigt's attack on the Aamodts for providing newspaper articles to this Board.

3. Voigt's characterization of the Aamodts' motion as "a scurrilous attack" on Mr. McBride, another counsel of the Numerous Employees, is nothing more than disappointment that the Aamodts are not willing to accept McBride's charade concerning the NRC order and the character assassination of the Aamodts he condt;ted with the charade. McBride's flamboyant attack on the Aamodts would, in and of itself, deserve address. Clearly, the Aamodts' address of the matter of McBride's stifling of justice through deception of the Board is not a scurrilous attack.

4. Voigt's filing of a personal letter in response to the Aamodts' motion is improper. It should be rejected.

5. Voigt's provision of an answer to a question which was posed for an employee is not proper. Floyd must respond.

Furthe Voigt's response is stated as his opinion not facts he ascertained. Where Voigt appears to state facts, he is not truthful.

Contrary to Voigt's statement that the NRC did not find Floyd guilty of anything, Floyd pleaded guilty to subnitting someone else's work to requalify for an NRC license. This is a matter of public record.

The Comission fined GPUN management for certification of Floyd with the knowledge that Floyd had cheated. _S_e_e_ Attachment 1, ppy 60-1 of CLI-85-2.

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6. The Aamodts request the Board to order Voigt or his firm to reimburse the Aamodts for the costs of this filing which was only made necessary because of false information provided by Voigt in his letter of April 3, 1987.

pectfully subnitted, e ~

l  % , 44N Marjorie'M. Aamodt ,

Norman O. Aamodt t 0. Yb'W

April 15,1987 t

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A1TACHMENT 1 60 a

change of position to the extent it was based on this issue is not now significant.

2. Certification of Floyd Staff stated that "while the false certification of Floyd was addressed in the restart proceeding, it was not until after the close of the hearing that the Staff determined that Licensee management knew of, and subsequently covered up, Floyd's cheating, and that the licensee made a false certification to the NRC." Staff Comments, Appendix at 10.

The false certification of Floyd was litigated before the Licensing Board. The Board concluded that Gary Miller (former Station Manager),

with John Herbein's (former Vice President, Met. Ed.) knowledge and assent, made a false certification to the NRC. The Board also found that the evidence raised questions about Miller's competence, and directed that until the matter was further resolved any involvement of Miller in TMI-1 operations must be under the direct supervision of an appropriately qualified licensee official. The Board further noted there was no evidence of improper conduct at any level higher than Herbein's, and that Herbein was no longer employed by GPU Nuclear.42 16 NRC at 354-55.

421f staff is implying there is now evidence of involvement of others in management, e.g., Arnold, our review has disclosed no evidence beyond that available to the Licensing Board, and staff has cited none.

The Licensing Board knew of Arnold's involvement in licensee's personnel action regarding Floyd. In addition, Arnold was the individual who -

brought this matter to the NRC's attention, and, regardless, he is no longer associated with THI-1 operati,ons.

Thus, the Licensing Board clearly recognized the significance of

this matter, and, in fact, expressed concern regarding staff's position on this matter. 16 NRC at 353.43 Floyd, Herbein and Miller are no i

longer employed by GPUN, and, as a result of the OI investigation, the 4

Comission has issued a Proposed Notice of Civil Penalty of $100,000 against GPUN (held in abeyance at D0J's request).44 Since there is no new evidence implicating other individuals at TMI-1 in this incident and the Board did not rely on staff's judgment here in the first place, we do not believe staff's likely change of position might have changed the Licensing Board's decision. Under these circumstances, staff's likely change of position because of this issue has minimal or no significance.

3. Pre-accident Training Irregularities and Post-accioent Cheating l

Staff's position on new information concerning preaccident training irregularities and postaccident cheating is as follows. " Staff was aware during the TMI-1 restart proceeding that the Licensee had problems r

I 43The Licensing Board found that "[t]he NRC Staff takes a surprisingly mild position on the August 1979 certification issue ....

at no place in the Staff's testimony or in the proposed findings and coments before us does the Staff discuss the untrue representation in the [ certification] letter ... We do not understand this silence....

We recommend that the Comission direct the s'taff to conduct an investigation ... We are somewhat disconcerted, however, because no component of the NRC Staff protested in this proceeding the false information in the certification to the NRC... Perhaps [the

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Comission's Office of Inspector and Auditor] should be enlisted to participate in any such investigation." 16 NRC at 353.

44The Comission notes in this regard that Floyd on November 16, ,

a 1984 was convicted in the District Court for the Middle District of a

Pennsylvania because of this incident.

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UNITES STATES OF AMERICA NUCLEAR REGUTATORY COMMISSION

0j! n-up c BEFORE THE PRESIDING BOARD 17 APR 20 21

11

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) 0FFIL-;. . , , . -

In the Matter of Docket No. LRP 00CKE Nm . ';tuvc

) 3%EH INQUIRY INTO THREE MILE ISLAND UNIT 2 )

) ASLBP No. 86-519-02 SP LEAK RATE DATA FALSIFICATION

)

'Ihis is to certify that copies of AAMOIyr RESPONSE 'ID VOIGT LETPER OF APRIL 3, 1987 were served on the Service List by deposit in U.S. Mail, First Class, postage prepaid, on April 16, 1987 M $h ~

Marjorie M. Aamodt April 16, 1987 Service List The Honorables Judges James L. Kelley (Chairman) Harry H. Voigt. Esq.

James H. Carpenter Michael F. McBride, Esq.

Glenn O. Bright Robert St. John Roper, Esq.

Atomic Safety & Licensing Board Holly S. Boast, Esq.

James W. Moeller, Esq.

U.S. Nucicar Regulatory Commission Marlene L. Stein, Esq.

• Washington, D. C. 20555 C. Christopher Sprague. Esq.

LeBoeuf, Lamb, Leiby & MacRae Docketing & Service Branch U.S. Nuclear Regulatory Commission Suite 1100 1333 New Hampshire Ave., N.W.

Washington, D.C. 20555 Washington, D.C. 20036 Jack Goldberg, Esq.

Smith B. Cephart, Esq.

Mary Wagner, Esq. Jane G. Penny, Esq.

Of fice of Legal Staf f Terrence G. McGowan Esq.

U.S. Nuclear Regulatory Commission Killian & Cephart Washington, D.C. 20555 216-18 Pine Street Harrisburg, PA 17108 Ernest L. Blake, Jr., Esq.

John H. Nassikas , III, Esq.

Michael W. Maupin, Esq.

Shaw, Pittman, Potts & Trowbridge Maria C. Hensicy, Esq.

2300 N Street, N.W.

Washington, D.C. 20037 Hunton & Williams P.O. Box 1535 Richmond, VA 23212 Isham, Lincoln & Beale Three First National Plaza

• Suite 5200 Chicago, IL 60602

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