ML20137W819
| ML20137W819 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 02/14/1986 |
| From: | Brighgt G, Bright G, Kelley J, Kline J Atomic Safety and Licensing Board Panel |
| To: | GENERAL PUBLIC UTILITIES CORP. |
| References | |
| CON-#186-111 86-519-02-SP, 86-519-2-SP, LPR, LRP, NUDOCS 8602200373 | |
| Download: ML20137W819 (14) | |
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SERVE 0 FEB 181986 D00 METED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Presiding Board:
'86 FEB 18 P3:12 James L. Kelley, Chaiman Glenn 0. Bright gfFICE OFa{
Jerry R. K1ine OCHETfig:.n.';U.
)
In the Matter of
)
Docket No. LRP
)
)
ASLBP No. 86-519-02 SP INQUIRY INTO THREE MILE ISLAND UNIT 2
)
LEAK RATE DATA FALSIFICATION
)
February 14, 1986
)
MEMORANDUM AND ORDER (Rulings on Petitions to Intervene, Scheduling of Prehearing Conference, and Representation of Counsel)
Petitions to Intervene.
On December 31, 1985, the Presiding Board sent a letter by certified mail to about one hundred and twenty present and former employees of GPU Nuclear Corporation
("GPUN")
and Metropolitan Edison Company who worked at TMI-2 between February 2, 1978 and March 28, 1979, the date of the accident.
This group represents those employees who might have been involved in or had knowledge of the reactor coolant system leak rate data that are the subject of this inquiry.
We enclosed a copy of the Commission's Order and Notice of Hearing of December 18, 1985 and invited those interested to file a petition to intervene by January 30, 1986. Other interested persons and GPUN
..n re-eived notice of the opportunity to intervene.
~%
>cJ has received petitions to intervene from the following:
%A G
bb'
,.. 1.
Twenty-five present and former employees of GPUN whose names are attached.
2.
John M. Kidwell, a former employee of Metropolitan Edison Company.
3.
John G. Herbein, a former officer and employee of Metropolitan Edison Company.
4.
Gary P. Miller, an employee of Metropolitan Edison Company.
5.
GPUN 6.
Marvin I. Lewis.
7.
Marjorie M. Aamodt.
Each of the first five petitions alleges facts demonstrating an interest of the petitioner that may be affected by the proceeding, and a likely ability to contribute to the record -- the standards for intervention established by the Commission.
The status and responsibilities of petitioning employees at the time of the accident makes their interests apparent.
There is a realistic possibility of actual injury to professional status for any employee who might be found to have committed wrongful acts in leak rate testing.
These employees' knowledge of the facts will be vital to development of the record.
GPUN's interest and ability to contribute to the record are also apparent.
Among other considerations, certain of its current employees are participants and it controls records which may be relevant.
For these reasons, the first five petitions listed above are granted, subject to the possibility of opposition noted below. Those petitioners k
.- are parties to this proceeding.
Their names or the names of their counsel (or lead counsel) will be placed on the service list.
Neither the Comission nor this Board made any explicit provision for objections to petitions to intervention.
Nevertheless, the
" Numerous Employee" petitioners have filed an opposition to the petition of Mr. Marvin Lewis.
It appears to us that the " Numerous Employee" opposition to Mr. Lewis' admission as a party may have merit.
It is unclear to us how Mr. Lewis' description of his areas of concern will qualify him to participate productively in an effort to determine responsibility for now-historic alleged falsif' ations of leak rate data.
Furthermore, from the standpoint of the " interest" requirement, the Board believes that Mr. Lewis' petition does not show how he might be injured or otherwise affected if he is not allowed to participate in this inquiry.
More intellectual interest in the subject is not a sufficient " interest" for party status.
The Board directs Mr. Lewis to file a response to the " Numerous Employee" opposition and to respond to the Board's concern about his interest by March 3, 1986.
In the alternative, Mr. Lewis may appear at the prehearing conference on March 7,1986, to address that opposition, and, if his petition is then granted, to participate as a party.
The
.amodt petition appears to be similarly deficient.
Even assuming that a person working or residing near TMI might have a sufficient interest for intervention, Ms. Aamodt does not allege that that is her situation.
We question whether anyone living near or working at any nuclear plant, let alone visiting one, has, on that i
. basis alone, an " interest" sufficient for party status.
Apart from
" interest," given the specific issues raised in this case, we do not think that Ms. Aamodt's unelaborated claim of " familiarity with the issue" in the TMI-1 Restart proceedings is a sufficient demonstration of ability to contribute to this proceeding.
As in the case of Mr. Lewis, we will dafer ruling on Ms. Aamodt's petition until the prehearing conference.
Ms. Aamodt may file a written response to our concerns by March 3, 1986, or, like Mr. Lewis, she may appear at the prehearing conference on March 7, 1986, for that purpose.
The Board is willing to entertain objections by any party to any of the petitions that are granted by this Order, provided they are filed by March 3, 1986. The Board will hear responses to any such oppositions at the prehearing conference and promptly determine whether admission of the party affected should be reconsidered.
Prehearing Conference.
There will be a prehearing conference in this proceeding on March 7, 1986, in the Appeal Board Hearing Room, Fifth Floor, East / West Towers, Bethesda, Maryland, commencing at 10:00 a.m.
The basic procedures for the hearing are already set forth in the Commission's Order of December 18, 1985, as amended by its Order of February 13, 1986.
The principal purposes of the conference will be to discuss additional procedures, as necessary, and to establish a tentative schedule.
The Board has tentative views on some of these items, as indicated below.
The Board is irterested in the views of the parties on each of the items.
. 1.
Hearing Schedule.
The Board envisions conducting the hearing in two phases.
Phase I would consist of testimony by the parties and other appropriate witnesses concerning background information, technical information, the results of investigations, and the knowledge and/or involvement of the individual parties and any other persons in leak rate testing at TMI-2 during the relevant time period.
Following Phase I, l
based on Board review of the record and the suggestions of the parties, the Board will determine what, if any, additional witnesses are needed in order to resolve the issues.
Phase II of the hearing would consist of testimony by those additional witnesses.
The Board tentatively believes that the following approximate schedule would be appropriate, consistent with the need for a full and fair hearing and the timely resolution of the issues:
Prehearing Conference Order: mid-March Hearing - Phase I: mid-April to mid-May Hearing - Phase II: mid-June to end of June Proposed Findings of Fact: August 1, 1986 Board Decision: October 2.
Location of Hearing. Most of the individual parties reside in pennsylvania, while most of the counsel and the Board are located in the Washington, D.C. area.
The Commission's Order states that the hearing is to be held in the Washington, D.C. area, although the Board may hold portions of the hearing elsewhere, consistent with the convenience of the parties and the public interest.
The Board wishes to hear the
- = - --
!' i parties' views on whether it would be appropriate to hold portions of 1
the hearing elsewhere.
t 1
3.
Witnesses and Prefiled Testimony.
The Board expects to hear t
i testimony in Phase I of the hearing from each of the parties and from j.
the NRC Staff, the Office of Investigations, and Mr. Stier regarding their investigations into leak rate testing practices at TMI-2.
The parties are invited to suggest to the Board any other witnessess they believe to be appropriate for Phase I of the hearing, as well as their preferred order of witnesses.
i The Board anticipates requiring the parties to submit written i
testimony in advance of their appearance in order to inform the Board and other parties of the substance of their testimony and to facili+. ate i
the parties' preparation of suggested questions for the witnesses.
I 4.
Documentary Evidence.
The evidentiary record in this i
proceeding will consist of the testimony of the witnesses and those documents accepted by the Board as exhibits.
At this time, of course, there is no formal record.
However, the Board has been provided the Stier Report and the Report of the GPU Assessment Panel, both of which i
are publicly available. The Board also expects to be provided very soon with the Report of Investigation resulting from the joint NRR/0!
4 i
I I
t
. investigations.1 The Board believes that these three reports may represent a significant body of information which might be a principal focus of the hearing as to some of the issues.
The Board is interested in the parties' views as to the use which should be made of the Stier, NRR/01, and GPU Assessment Panel reports; and whether any party objects to Board consideration of all or portions of these reports.
5.
The Board is aware that some, perhaps most, of the witnesses who will testify in this hearing have already been interviewed under oath regarding the subject of this hearing.
The transcripts of such interviews, when combined, constitute a
fairly large volume of documents.
This raises the question of the role, if any, those prior statements by the witnesses (or non-witnesses) will have in this hearing.
If the parties anticipate suggesting questions for a witness based on prior statements of that witness or others, or using such prior statements in proposed findings either as substantive evidence or for impeachment, then it inight be necessary to develop appropriate procedures, such as a stipulation among the parties as to the body of available interviews and a requirement of timely notification to the Board of their intended use of portions of such interviews.
The Board is interested in the parties' suggestions on these related questions.
I The Board wishes to have the NRR/01 Report provided to the Boa,rd and the parties as soon as possible.
Its unavailability would probably delay this inquiry.
. 6.
Questions for Witnesses.
Under the Commission's Order, only the Board may question the witnesses.
However, the Board will solicit suggested questions from the parties.
The Board is interested in the parties' views on appropriate procedures for the submission of suggested questions, on whether a party's suggested questions should be required to be served on all parties, and on the most appropriate way for the Board to handle follow-up questions after the Board's initial examination of a witness.
7.
Sequestration Witnesses.
Sequestration of some witnesses may be appropriate.
Although many of the witnesses have given statements under oath on one or more occasions on the subject of the hearing, and each party may be familiar with the substance of others' prior statements, the hearing may be the first public forum where the witnesses will be testifying.
In this circumstance, some sequestration may serve a useful purpose.
8.
Role of Counsel.
Counsel for parties may not examine witnesses, but may suggest questions for witnesses to the Board.
The Board is considering whether it should entertain counsels' objections to the Board's questions of witnesses, or to one another's questions. Any comments the parties may have on these or other issues involving the role of counsel for parties and any counsel for non-party witnesses will be considered.
9.
Role of the NRC Staff. Although the NRC Staff is not a party i
to this hearing, we anticipate that it will be assisting the Board by providing testimony and documentary evidence, and by consulting with the Board throughout the inquiry.
The Staff may discuss procedural and st tus matters off the record with a party or parties, subject to the fa.rness considerations noted in the next paragraph.
10.
Ex Parte Communications.
Although ex parte communication restrictions are not technically applicable to this hearing, issues of fairness could nevertheless arise if off-the-record communications on the merits between the parties and the Board were permitted.
The Board will be developing an evidentiary record and will base its findings of fact exclusively on the record.
Therefore, there should be a common l
understanding as to any limitations, beyond those generally stated in this paragraph, to be placed on off-the-record communications.
Because the NRC Staff will be assisting the Board throughout the hearing, any i
such limitations would also appear to be appropriate between the parties i
and the Staff.
The Board welcomes the comments of the parties on the questions and i
concerns listed above.
Again, the Board's views, to the extent expressed, are tentative.
The parties should be prepared to discuss these matters at the prehearing conference.
In addition, the Board would appreciate the parties' serving written comments on these matters, 1
if they choose to do so, by March 3,1986.
Should any party wish to I
4 b
i
1
. suggest additional items for discussion at the prehearing conference, such items shall be served by March 3, 1986.
Representation of Certain GPUN Employees.
Twenty-six present or former employees of GPUN are represented on their pleadings by two attorneys from the Washington firm of LeBoeuf, Lamb, Leiby & MacRae and by two attorneys from the Harrisburg, Pennsylvania firm of Killian &
Gebhart.
Four additional attorneys from LeBoeuf, Lamb, Leiby & MacRae and one additional attorney from Killian & Gebhart have also entered appearances in the proceeding -- a total of nine attorneys.
Given the purpose of this proceeding to determine individual responsibility for alleged wrongful acts, we understand that these twenty-six petitioners (and now parties) are here to protect their separate interests, and not as a group.
However, the attorneys' notices of appearance do not differentiate among the twenty-six parties, each stating that he or she represents " numerous employees of Metropolitan Edison Company during 1978-79."
It appears to us that multiple representation of the employee-parties by a group of attorneys acting jointly may give rise to conflicts of interest. For example, it might be shown that a particular data falsification did occur, but it might be unclear whether the falsification was the responsibility of Employee "A" or Employee "B",
both of whom might be represented by the same attorney group.
Or both "A"
and "B" might contend that "C", a third member of the same group, was responsible. Absent an explanation, we question whether a group of
. attorneys acting jointly will be able to give undivided loyalty and vigorous representation to such potentially diverse interests.
Apart from possibly conflicting interests among the employees, and on the not unreasonable supposition that the twenty-six employees are not paying the fees of their attorneys, we might, depending upon the details of the fee arrangement, be concerned if those fees were being paid by GPUN or any other entity having an interest in the outcome of this inquiry.
In the circumstances, it is obvious that the interests of GPUN and the employees might come into conflict.
Indeed, such a conflict has already surfaced in pleadings before the Comission. See Numerous Employees Motion for Clarification and Reconsideration; GPUN's Answer to Motion for Clarification.
The Board wishes to avoid the kinds of problems that have arisen in somewhat similar situations in the courts.
See, e.g.,
In re Investiga-tion Before the April 1975 Grand Jury, 531 F.2d 600 (C.A.D.C.1976); !_n re Gopman, 531 F.2d 262 (C.A. 5, 1976); Shadid v. Jackson, 521 F. Supp.
87 (E.D.
Tex.
1981).
To be
- sure, this is a
discretionary, information-gathering proceeding which "will not be used to deprive any individual of any statutory hearing rights." Comission Memorandum and Order, CLI 86-03, p.
1, dated February 13, 1986.
Nevertheless, the proceeding could have important practical consequences for the party-employees and, in apparent recognition of that fact, all present parties are represented by counsel.
The proceeding should be conducted in conformity with widely recognized principles governing such representation.
- See, e.g.,
American Bar Association Model Rules of
1
! l l
j i
Professional Conduct, Rule 1.7(b) and 5.4(c).
Accordingly, we ask the 1
j attorneys for the twenty-six employees to answer the following questions by March 3, 1987:
i 1.
Do you agree that conflicts of interest of the kind we have described might arise in the proceeding if you serve jointly as counsel for the twenty-six employees? If not, please
]
explain.
j 2.
Describe any arrangements you will make to ensure separate and independent advice is given to employees having conflicting or potentially conflicting interests, i
l 3.
Has the possibility of conflicts, when and if they arise, and I
the scope of your duties as counsel been explained to the J
employees?
i i
4.
Have the employees consented in writing to your representation, including a knowing waiver of any objections to dual representation?
l I
5.
Are your fees to be paid by GPUN or any other entity having an interest in the outcome of this inquiry? If so, what arrange-ments have been made to avoid the possibility of conflicts of l
r
. interest or interference with the independent exercise of professional judgment because of the fee arrangements?
The Board's questions do not reflect any prejudgment on our part that representation arrangements satisfactory to the parties and the Board do not exist or cannot be worked out.
We do believe, however, that the questions we have raised should be aired and resolved on the record at the outset.
THE PRESIDING BOARD Q--r 44 Jaff L. Kelley, Chairman f ADmNISTRATIVE JUDGE SD. dix Glenn O. Bright 7
ADMINISTRATIVE JUDGE 9 [. [
7 M perry /R. Kline ADMINISTRATIVE JUDGE Bethesda, Maryland
Attachment:
Names of intervening employees
Attachment Names of Intervening Employees Charles D. Adamn Gregory R. Hitz, Sr.
Raymond R. Booher Kenneth R. Hoyt John A. Brummer Theodore F.
Illjes Kenneth P. Bryan George A. Kunder Joseph J. Chwastyk Walter J. Marshall Mark S. Coleman Hugh A. McGovern William T. Conaway Brian A. Mehler Joseph R. Congdon Charles F. Mell Craig C. Faust Adam W. Miller James R. Floyd Frederick J. Scheimann Edward R. Frederick Ber7ard G. Smith Leonard P. Germer William H. Zewe Carl L. Guthrie l
c