ML20112C754

Answer of Former Met Ed Employees in Opposition to TMI Alert 850313 Motion for Reconsideration.Request for Order Directing Continuation of Informal Discovery Re Leak Rate Falsification Should Be Denied.Certificate of Svc Encl

ML20112C754
Person / Time
Site:	Three Mile Island
Issue date:	03/20/1985
From:	Voigt H AFFILIATION NOT ASSIGNED, LEBOEUF, LAMB, LEIBY & MACRAE
To:	NRC COMMISSION (OCM)
References
CON-#185-185 SP, NUDOCS 8503220122
Download: ML20112C754 (5)

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NUCLEAR REGULATORY COMMISSION USNRC BEFORE THE COMMISSION '85 > 20 P4 :27 C F R C-~ .- 5tutTo

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METROPOLITAN EDISON COMPANY ) Docket No. 50-289 SP

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ANSWER OF NUMEROUS FORMER MET ED EMPLOYEES IN OPPOSITION TO TMIA MOTION FOR RECONSIDERATION On March 13, 1985, Three Mile Island Alert ("TMIA")

filed a Motion for Reconsideration of the Commission's Memorandum and Order served on February 26, 1985, CLI-85-2.

TMIA asks the Commission to issue an order requiring the

" continuation" of informal discovery concerning the alleged falsification of leak rate tests at TMI-2. TMIA Motion at 11-13. On behalf of numerous former employees of Metropolitan Edison Company who may be involved in hearings concerning the alleged leak rate falsification, we oppose TMIA's motion for continued informal discovery. Simply put, there is no legal' basis for the relief requested for TMIA, and therefore the motion must be denied.

1. TMIA's motion necessar,ily assumes that there is a proceeding pending before the Commission in which discovery may be conducted. That assumption is wrong. In CLI-85-2 at 34, the Commission reversed the decision of the Atomic Safety and Licensing Appeal Board in ALAB-738, 18 N.R.C. 177 (1983), to 8503220122 850320 PDR ADOCK 05000299

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\ reopen the record for hearings on TMI-2 leak rates. Accord-ingly, the jurisdiction of the existing Atomic Safety and Licensing Board over that issue has been terminated. To be sure, the Commission has stated its intention to convene a new proceeding to-consider TMI-2 leak rate falsification, but the order instituting a separate hearing has not yet been issued, and no Licensing Board has been appointed. There is, there-fore, no proceeding now pending in which discovery may be ordered.

2. Because there is no proceeding pending, TMIA obviously is not currently a party entitled to conduct dis-covery. TMIA states that it "will participate in any hearings the Commission establishes". TMIA Motion at 12. Aside from the fact that the new proceeding has not yet been initiated, it is not a foregone conclusion that TMIA will be a party to it.

Before TMIA may become a party and seek discovery, it will be required to comply with 10 C.F.R. S 2.714. Intervention by TMIA in the new proceeding may well be opposed. Until a Licensing Board is appointed and TMIA is admitted as a party, TMIA has no right to discovery, and there is no basis for any order directing discovery at this time.

3. Although a notice of hearing to institute a new proceeding has not been issued, the Commission has made clear that the employees who may have been involved in leak rate falsification "should receive notice of this hearing and be allowed to participate." CLI-85-2 at 35. Those employees who I

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l' become parties to the new hearing should be afforded the opportunity to participate in a pre-hearing conference, to be heard on the nature and extent of discovery, and to participate in any discovery thereafter ordered by the new Licensing Board. To order discovery to go ahead prior to the commence-ment of a new proceeding, as requested by TMIA, would deny due process to those individuals who will be most directly affected. Clearly, discovery concerning leak rate testing at TMI-2 must await a further order of the Commission, the eppointment of a Licensing Board, and an opportunity for the affected individuals to appear before the Licensing Board and participate in the development of appropriate discovery procedures.

Conclusion For the foregoing reasons, TMIA's request for an order directing the " continuation" of informal discovery concerning leak rate falsification at TMI-2 should be denied.

Respectfully submitted, LeBOEUF, LAMB, LEIBY & MacRAE Of counsel:

MICHAEL F. McBRIDE By M M MOLLY S. BOAST {}rtner (

SMITH B. GEPHART JANE G. PENNY 1333 New Hampshire Avenue, N. W.

Killian & Gephart Suite 1100 Harrisburg, PA 17108 Washington, D.C. 20036 (202) 457-7500 Attorneys for Numerous Former Metropolitan Edison Employees March 20, 1985

~0 CERTIFICATE OF SERVICE C h ETED usvc I hereby certify that I have this 20th day of March

'85 MD 20 P4 :27 1985 served the foregoing " Answer of Numerous Former Met Ed Employees in Opposition to TMIA Motion for Reconside@6n"gtyg nw first-class mail, postage prepaid upon the following parties:'

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Administrative Judge Gary J. Edles < v '~ ~ - e . - .

Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Administrative Judge Christine N. Kohl Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Joseph R. Gray, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 George F. Trowbridge, Esq.

Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.

Washington, D.C. 20036 Mr. J.R. Thorpe Director of Licensing GPU Nuclear Corporation 100 Interpace Parkway Parsippany, NJ 07054 Mr. Henry D. Hukill Vice President and Director, TMI-l GPU Nuclear Corporation P.O. Box 480 Middleton, PA 17057 Marvin I. Lewis 6504 Bradford Terrace Philadelphia, PA 19149 Docketing and Service Section U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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Lynne Bernabei, Esq.

General Counsel Government Accountability Project 1555 Connecticut Avenue, N.W.

Washington, D.C. 20009 Ellyn R. Weiss, Esq.

Harmon, Weiss & Jordan 2001 S Street, N.W.

Suite 430 Washington, D.C. 20009 Thomas D. Rees, Esq.

Office of General Counsel 333 Market Street, 17th Floor Harrisburg, PA 17120 Thomas Y. Au, Esq.

Office of Chief Counsel Department of Environmental Resources 505 Executive House P.O. Box 2357 Harrisburg, PA 17120 Joanne Doroshow The Christic Institute 1324 North Capitol Street, N.W.

Washington, D.C. 20002 Administrative Judge Ivan W. Smith Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Administrative Judge Sheldon J. Wolfe Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Administrative Judge Gustave A. Linenberger, Jr.

Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.' 20555 Jack R. Goldberg, Esq.

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 L'HarryH.Voigt 9/ 762 g

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