ML19317H312
| ML19317H312 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/15/1980 |
| From: | Fidell E, Gephart S KILLIAN & GEPHART, LEBOEUF, LAMB, LEIBY & MACRAE |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8005220327 | |
| Download: ML19317H312 (12) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMIFSIO enth g
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BEFORE THE COMMISSION D
4 In the Matter of
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METROPOLITAN EDISON COMPANY
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Dkt. No. 50-320 (Three Mile Nuclear Station,
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Unit No. 2)
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MOTION TO QUASH SUBPOENAS AND FOR EXPEDITED CONSIDERATION On May 2,
1980, the Director, Office of Inspec-tion and Enforcement ("the Director"), issued a number of subpoenas in the above facility license docket.
These subpoenas are improper and burdensome because the Three facility ("TMI-2")
Mile Island Nuclear Station, Unit No.
t is already the subject of an investigation by the May 1980 Grand Jury of the United States District Court for the Middle District of Pennsylvania, Harrisburg Division, at the instance of the Nuclear Regulatory Commission ("the Commission").
For the reasons stated in this Motion, submitted on behalf of six of the persons.who have.been subpoenaed
("Movants")
by the Director, tfe subpoenas should be quashed.
Under 52.720(f) of the Commission's Rules of
- Practice, 10 C. ;'. R. 52.720(f)
(1980),- the Commission may quash a subpoena if it is unreasonsble..
It.. may also 8 0052203N
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condition denial of 'a motion to quash on just and reason-able terms.
Movants respectfully suggest that the sub-poenas issued by the Director are unreasonable and burden-some.
These subpoenas were issued on May 2, 1980.
They-
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relate to aspects of the accident at TMI-2.
At the time i
the subpoanas were issued, the Commission had already referred TMI-2
.atters to the Department of Justice.fo r criminal investigation by a Federal Grand Jury.
Such a Grand Jury was convened by the United States District Ccurt for the Middle District of Pennsylvania on May 12, 1980.
While this is a general Grand Jury, the only item of its business that has thus far been identified as a significant concern is the accident at TMI-2.
The accident was refer-red to by the presiding Judge, Hon. Sylvia H.
Rambo, in charging the Grand Jury at the time of its impanelment on May 12.
See In re May 1980 Grand Jury, Misc. No.80-131 (M.D. Pa. May 12-13, 1980) (attached).
Numerous subpoenas have been issued seeking testimony and the submission of documents before that Grand Jury.
The Grand Jury's activi-ties for almost all of the week now ending have had to do with TMI.
Thirteen of our clients have been subpoenaed to appear before the Grand Jury.
Those subpoenas were issued O
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on May 1,
1980.
Six have received subpoenas to appear before the Director.
Two have been subpoenaed to appear before both the Grand Jury and the Director.
Because the Grand Jury has evidently f allen behind its original time-table, schedule conflicts will inevitably arise among these required appearances.
The Director's subpoenas were issued pursuant to a Commission delegation, see 10 C.F.R. 52.720(a)
(1980),
dated April 23, 1980.
That delegation followed a request for subpoena authority from the Director, as well as the Commission's own recognition in correspondence to a Member of Congress that it was contemplating referral of TMI matters to the Department of Justice for criminal prosecu-tion.
See Le tter from Chairman Ahearne to Hon. Morris K.
- Udall, March 21, 1980.
- Hence, the Director's subpoenas were not only issued after the Commission clearly had in mind to refer TMi matters to the Justice Department for criminal proceedings, but were issued after such matters were referred to the Justice Department, and after the Grand Jury subpoenas had been issued.
In the circumstances, the Director's subpoenas should be quashed.
The Commission has already invoked the process of the Federal criminal justice system in respect O.
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of TMI.
Having done so, it may not continue to subpoena witnesses in the fashion the Director has sought to employ.
Its subpoenas referring without elaboration to a broad section of the Criminal Code, the Grand Jury's investiga-tion cannot be limited, and the Commission cannot in any event know the scope of the Grand Jury's investigation.
See Fed.
R.
Crim.
P.
6.
Hence, it is impossible to contend that the subject matter taken up in response to the Grand Jury subpoenas will not overlap, in whole or in part, with that taken up in response to the Director's subpoenas.
It is also pertinent to observe that the T,MI accident has been investigated to an extraordinary extent.
Our clients have been subjected to interviews, investiga-tio ns, hearings, depositions, and now Grand Jury appear-ances.
The variety of investigations is unprecedented; it includes inqu. ries by the Office of Inspection and Enforce-ment; the Spt :ial Inquiry Group; the Kemeny Commission; and committees of both Houses of Congress.
The burdensomeness of the Director's subpoenas must be judged not only in itself, but also against the background of this veritable siege of investigative efforts.
Because the Commission has already invoked the criminal process, it is improper to continue to use investi-
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gative subpoenas.
Having elected to refer the matter for Grand Jury attention, subpoenas such as those returnable before the Director next week should be quashed.
Such action can be taken without prejudice to reissuance once the criminal process the Commission itself has triggered has run its course.
Until then, the risk that our clients' rights in the context of the criminal process will be compromised by ongoing, overlapping or redundant agency investigations is so grave as to compel withdrawal of the subpoenas.
Any other result would tend to undercut the Grand Jury's efforts, unduly expand Government discovery rights under the Federal Rules of Criminal Procedure, and subject our clients to the harassment of multiple Federal investigations.
ThE agency has, in the past, been sensitive to the need to avoid any suggestion that its activities were an intrusion on the role of the Federtl Courts.
In re Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-350, 4 NRC 365, 366 (1976).
Such concerns are squarely in point her.:, and strongly counsel i
that the Commission avoid any possibility of interfering.
with the Grand Jury's investigation or prejudice to our clients' rights in connection with that investigation.
l Pursuant to S2.708(e) of the Commission's hales l
of Practice, 10 C.F.R. 52.708(e)
(1980), service in this l
matter should be made on the attorneys listed below.
For the foregoing reasons, the subpoenas should be quashed.
Because the subpoenas are returnable next week, expedited consideration of this Motion is requested.
Respectfully submitted",
W HA Y H. VOIGT EUGENE R.
FIDELL MICHAEL F.
McBRIDE LeBOEUF, LAMB, LEIBY & MacRAE 1333 New Hampshire Avenue, N.W.
Washington, D.C.
20036 (202) 457-7500 SMITH B. GEPHART JANE G.
PENNY KILLIAN & GEPHART 218 Pine Street Harrisburg, Pennsylvania l
(717) 232-1851 Attorneys for Movants Joseph J. Chwastyk George A. Kunder Hugh A. McGovern Brian A.
Mehler Lynn O. Wright William Zewe May 15, 1980 l.
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MAY 161980 > -4 MTED STATES DISTRICT cot.'RT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA g
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4 IN THE MATTER OF
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) MISC. NO.80-131 g T.>y' y MAY 1980 GRAND JURY
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6 MEMORANDUM AND ORDER On May 12,1980, counsel for thirteen persons subpoenaed to testify before the May 12, 1980 grand jury filed a cotien to excuse disqualified pe'rsons free the array, a me=orandum with regard to voir dire of prospective grand juror 1, and a motion for an order to persons participating in grand jury proceedings pursuant to Federal Rules of Criminal Practice 6t 'It)( A)(ii).
Pursuant to the motion to disqualify persons from the array, the court.nade the following inquiries of the panel:
1.
Does any prospective grand juror have any civil suit l
pending against Metropolitan Edison as a result of the incident at Three Mile Island on March 28. 1979?
l 2.
Is any prospective grand juror an e=ployee or former employee of the M3tropolitan Edison Cc.mpany?
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3.
Is any prospective grand juror related to any e=ployee or former employee of the Metropolitan Edison Company?
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Does any prospective grand juror live within a five c:il radius of Three Mile Island?
3 5.
Is there any reason that any of you have which would I
i prevent you from fairly participating in grand jury determinations about the conduct of one or tsore em-1 I
ployees of the Metropolitan Edison Company during b
the operation of the Three Mile Island generating station?
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The proposed voir din questions submitted by counsel for the l
thirteen persons subpoenaed to t.sstify before the May 12,1980 grand
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jury are refused except for number 20.
Counsels' request for an order pursuant to Federal Rules of Criminal Procedure 6(e)(3)(A)(li) is refused, as the same is deemed l
unnecessary in light of the United States Attorney's letter, given to each grand jury witness, which incorporates the provisions of f
Federal Rules of Criminal Procedure 6(e)(3)( A)(li) and 6(e)(B).
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" 5pa ri. Aamoo I
t,nited States District Judge
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I Dated: May 12,1980 i
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MAY 151960 > (
O!! ice cl the Secre:ary Decketing & Service Branch
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s, Re:
Grand Jury Proceedings Matters which have occurred before the Grand Jury are being disclosed to you pursuant to Tederal Rule of Crir._inal Procedure 6(e)(3)(A)(ii), in th'at an attorney for the Government has determined that such disclosure is.
necessary for you to assist in the enforce: cent of Federal criminal law.
You are explicitly prohibited from utilir.in6 the information or material which is the subject of this disclosure for any purpose other than to assist an attorney for the Government 1.n the performance of such attorney's duty to enforce Federal criniinal law.
Furthermore, the
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provisions of Rule 6(e)(2) prohibit you from disclosing any of this information or material except (1) to an attorney for the Government for use in the perforca.nce of sdeh attorney's duty; e_nd (2) to such Government personnel as an attorney
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for the, Government deems necessary to assist in the. enforcement of Federal criminal law.
Please note that the aforementioned Federal Rule of Criminal Procedure provides 'that it is the respcnsibility of an attorney for the Government to determine to who= ca.tter:
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(2) occurring before the Grand Jury are to be disclosed.
Therefore, before you disclose any such natter to other Government personnel, an attorney for the Government must be consulted and must authorize the disclosure.
Finally,'it is imperative that you maintain a list of all disclosures of Grand Jury materials which you do make.
The list should identify the recipient of the disclosure, the date of disclosure, and the materials disclosed.
Such is necessary in order to rebut any ellegations of improper disclosure which night be raised.
O OAho~kA.Df A
CARLON M. O' MALLEY,
>R United States Attor y
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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA r
IN THE MATTER OF
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MISC. NO.80-131 MAY 1980 GRAND JURY
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AMENDED ORDER i
e The last paragraph of the order dated May 12, 1980, is hereby I
amended to read as follows:
I Counsel's request for an order pursuant to Federal Rules of f
Criminal Procedure 6(e)(3)( A)(ii) is refused, as the same is deemed i
i unnecessary in light of the United States Attorney's letter, which incorporates the provisions of Federal Rules of Criminal Procedure j
6(e)(3)( A)(ii) and 6(e)(B).
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Y uW1s sy p n. Aamoo United States District Judge f
Dated: May 13,1980 I
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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METROPOLITAN EDISON CDMPANY
)
Dkt. No. 50-320 (Three Mile Nuclear Station,
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Unit No. 2)
)
CERTIFICATE OF SERVICE I certify that I have, this 15th day of May, 1980, served the foregoing Motion to Quash Subpoenas and for Expedited Conside ation by hand deliveririg copies thereof to the following persons:
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DOCKETED D
Samuel J. Chilk, Esq.
Secretary USNac U.S. Nuclear Regulatory Commission
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Og MAY 151980 > -4 1717 H Street, N.W.
Washington, D.C.
20555 M Of5ce of the Smetary Nh h
Attn:
Docketing and Service Section ro (original + 20 copies)
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N Hon. Leonard Bickwit General Counsel U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, D.C.
20555 Richard G. Bachmann, Esq.
Counsel for Regulatory Staff I
Maryland National Bank Building 7735 Old Georgetown Road Bethesda, Maryland j
Eugene R.
Fidell i
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