ML20137F274

Motion for Clarification & Reconsideration of Commission 851218 Order Re Inquiry Into TMI-2 Leak Rate Data Falsification.Served on 860114

ML20137F274
Person / Time
Site:	Three Mile Island
Issue date:	01/14/1986
From:	Voight H, Voigt H LEBOEUF, LAMB, LEIBY & MACRAE, METROPOLITAN EDISON CO.
To:	NRC
Shared Package
ML20137F261	List: ML20137F253 ML20137F274
References
CLI-85-18, LRP, NUDOCS 8601170490
Download: ML20137F274 (6)

Text

e g&Y' T L ' f' ..

\

UNITED STATES OF AMERICh .

NUCLEAR REGULATORY COMMISSION ,,7p/r-jEM 1 _ (

) b In the Matter of ) \(-- -,

_ f) '

) 'x , ,i INQUIRY INTO THREE MILE ISLAND ) Docket No. LRP ~~~ f UNIT 2 LEAK RATE DATA )

FALSIFICATION )

)

MOTION FOR CLARIFICATION SERVED $yy 19h,b AND RECONSIDERATION Introduction On behalf of numerous former employees of Metropolitan Edison Company who will be involved in this proceeding either as intervenors or as witnesses, we move for clarification and reconsideration of the Commission's Order served on December 18, 1985. CLI-85-18. As the Commission knows, LeBoeuf, Lamb, Leiby & MacRae and Killian & Gephart have since 1980 I

represented approximately 50 former Metropolitan Edison employees who worked at, or had some supervisory responsibility for, TMI-2. We have represented these individuals through investigations by three Federal Grand Juries and in numerous interviews conducted by the NRC and other parties. We anticipate that most of.our clients will be involved in this proceeding and that we will continue to represent them. Even though there are, as yet, no parties to this proceeding, we believe that it is proper for us to present this motion to the l

l Commission.

B601170490 H60114 PDR ADOCA 05000320 9 PDR

(

Recuests for Clarification On behalf of our clients, as prospective intervenors and witnesses, we ask the Commission to clarify the following portions of CLI-85-18:

1. Paragraphs B.l. and C l. of CLI-85-18 take as a given that " leak rate falsifications" actually occurred at TMI-2. The Hartman allegations do not support that assumption. When Mr. Hartman was cross-examined under oath during the B&W litigation, he could identify only one individual (other than himself) who had engaged in falsification, and even that identification was conclusionary.

No individual was indicted by the 1983 Grand Jury. Numerous individuals have been interviewed by the NRC and others and have steadfastly denied any wrongdoing. In the circumstances, we submit that it would be appropriate for the Commission to clarify its order to refer to " alleged leak rate falsifications".

2. At page 11 of CLI-85-18, the Commission states that the facts found in this proceeding will not be binding in any subsequent enforcement or licensing proceeding. However, in footnote 3, the Commission indicates that the information developed "may be used for other purposes, for example, in evaluating whether an individual's operator license should be renewed." This appears to contradict the statement in the

\.

text. o The C'mmission shoulc clarify that information developed in this hearing may not be used to deny, suspend, or revoke an

, individual operator's license without prior notice and the opportunity for an adjudicatory hearing.

Requests for Reconsideration on behalf of our clients, we request that the Commission reconsider the following portions of i'.s order:

1. We believe that the Commission, in paragraph B.2.,

has omitted a significant chreshold issue that should be considered by the Presiding Board. In order fully to understand both the background of the Hartman allegations and the importance of alleged violations connected with the reactor coolant leak rate surveillance, the development and significance of the surveillance procedure should be explored.

We propose that the Commission specify an additional issue for hearing:

Were the requirements for reactor coolant system unidentified. leakage in Technical Specification 3.4.6.2.

reasonably promulgatcd and imposed by the NRC in the operating license for TMI-2? Was there a reliable method known to anyone in 1978-79 that would have produced a reasonably accurate measure of unidentified leakage from the reactor coolant system? What is the safety significance, if any, of the one gallon per minute limit on unidentified leakage imposed by the NRC?

(

2. In paragraph C.S. (b) , the Commission has prohibited discovery in this proceeding. We believe that the Presiding Board should be given discretion to grant discovery for good cause shown. Many of those persons who will testify in this proceeding (including our clients) have previously been interviewed or deposed concerning alleged leak rate falsification, and their prior statements are a matter of public record or will be made part of the record in this case.

Others who may testify have conducted investigations and compiled reports that are likewise publicly available. With respect to those persons whose positions are already a matter of public record, discovery is probably not necessary.

However, it is possible that witnesses may be called by the Board, or offered by other parties, who have never previously testified on these issues and whose positions will not be known ahead of time. To compile an orderly and complete record, and to avoid surprise at the hearing, we believe that discovery should be available in those cases. Particularly if a witness is going to offer expert testimony concerning the possible involvement of one or more individuals in misconduct, fundamental fairness dictates that those individuals should be apprised of that testimony prior to it being offered at the hearing. Limited, supervised discovery can fill that need.

3. Paragraphs C.S. (a) and (d) deny parties the right to cross-examine witnesses. Even though the Commission has

c.

5-designated a legislative hearing format, we believe that cross examination is essential to the development of a complete record. The issues in.this proceeding are exceedingly complex and highly technical. They include such matters as the l

- adequacy of the computer program for the leak rate test, the accuracy of a number of instruments that provided input for the test, the physical effects of additions of water and hydrogen upon those instruments, and the proper calibration of strip charts that recorded instrument readings. We have lived with these issues for six years, and we believe that we have

- developed some expertise concerning them. The Presiding Board has had no prior contact (to our knowledge) with TMI-2, the people involved, or the technical issues. We believe tha we can provide substantial assistance to the Board if we are permitted to cross-examine witnesses--particularly expert witnesses--concerning the technical issues. (If there are other parties who possess similar insight, they also should be permitted to assist the Presiding Board by cross-examination.)

The submission of written questions to the Board to ask witnesses is not a satisfactory substitute because, among other things, the Board may not understand the purpose of certain questions and may not have the knowledge or ability to propound follow-up questions. Cross-examination should be the rule, not the exception: the Presiding Board should have full discretion to permit it.

t y ,,-.r .-,w w-v- -e- ,-,.----.w.-,,,,,.w -,,---.,,-..,-,,-m,-e,-, - - . - ,~-, ,, ,- - - - , . - r_,, . .-.,.-

s k

Conclusion For the foregoing reasons, the Commission should clarify and reconsider CLI-85-18 as set forth above.

g Respectfully submitted, LeBOEUF, LAMB, LEIBY & MacRAE By fLf4u N Of Counsel: ([ Partner (/

WILLIAM G. PRIMPS 1333 New Hampshire Avenue, N.W.

MICHAEL F. McBRIDE Washington, D.C. 20036 MOLLY S. BOAST (202) 457-7500 JAMES W. MOELLER SMITH B. GEPHART KILLIAN & GEPHART JANE G. PENNY 218 Pine Street Harrisburg, PA 17108 (717) 232-1851 January 14, 1986