ML20151U085

Response Opposing Gpu Nuclear 860131 Motion Opposing 860131 Petition for Reconsideration of 851218 Order CLI-85-18 to Permit Testimony Re Leak Rate Data Falsification.Economy & Efficiency of Issue Cited.W/Certificate of Svc

ML20151U085
Person / Time
Site:	Three Mile Island
Issue date:	02/07/1986
From:	Voight H GENERAL PUBLIC UTILITIES CORP., LEBOEUF, LAMB, LEIBY & MACRAE
To:	NRC COMMISSION (OCM)
Shared Package
ML20151U075	List: ML20151U071 ML20151U085
References
CLI-85-18, LRP, NUDOCS 8602100466
Download: ML20151U085 (9)

Text

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00LMETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION BEFORE'THE COMMISSION 86 FEB -7 PS :01 0FFQ DOCK! h UR: tic

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In the Matter of )

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INQUIRY INTO THREE MILE ISLAND' ) Docket No. LRP UNIT 2 LEAK RATE DATA )

FALSIFICATION )

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REPLY OF-NUMEROUS- 1978-79 EMPLOYEES OF METROPOLITAN EDISON COMPANY TO GPU NUCLEAR CORPORATION'S ANSWER TO MOTION'FOR CLARIFICATION AND RECONSIDERATION In response to the Commission's Order and Notice of Hearing issued on December 18, 1985 (" Order"), CLI-85-18, 50 Fed. Reg.

52,388 (Dec._23, 1985), the law firms of LeBoeuf, Lamb, Leiby &

-MacRae and.Killian & Gephart filed on January 14, 1986 a Motion for Clarification and Reconsideration (" Motion") on behalf of numerous 1978-79 employees (" Employees") of Metropolitan Edison Company (" Met Ed"). On January 31, the Employees, represented by.those law firms, filed a Petition for Leave to Intervene.

On the same day, GPU Nuclear Corporation ("GPUN") filed its

-Answer to Motion for Clarification and Reconsideration

(" Answer").

GPUN opposes the Motion. In particular, GPUN argues that the adoption of the additional issue set forth in the Motion hDj21 0466 060207 "s o DOCM osoooggg '

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will unnecessarily expand the scope of the proceeding.

However, as discussed below,. fundamental considerations of d

fairness and ju'icial efficiency and economy requi~re the inclusion of this issue.

Fairness Fairness to the Employees, whose professional conduct is the subject of the present hearing, requires a broader scope of inquiry in this proceeding. GPUN notes its indifference to "apprcisriate matters going unaddressed" in this proceeding.-

Answer at 3. It argues that the reasonableness, reliability, and significance of the license requirements associated with TMI-2 leak rate surveillance testing are " independent of the state o'f mind or the actions of the relevant individuals."

Answer at 4.

.On the contrary, the involvement of those individuals, including the Employees, in TMI-2 leak rate surveillance testing can be neither fairly nor intelligently addressed with a blind eye toward the appropriateness of the license requirements governing this testing. The United States of America (which of course includes the Commission) has already determined that Met Ed failed "to establish, implement and maintain an accurate and meaningful reactor coolant system water inventory balance procedure [ leak rate surveillance test]

to demonstrate that unidentified leakage was within allowable L

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limits." Indictment, United. States v. Metropolitan Edison Company, No.'CR-83-00188 (M.D. Pa. November 7, 1983). Met Ed, GPUN's predecessor as the licensee for TMI-2, pled guilty to

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that charge. Thus, from the Commission's standpoint,-and from

'GPUN's perspective, the issue is moot.

The Employees, however, have never had any hearing on this issue. How'can the Commission determine whether any individual is guilty of " dereliction or culpable neglect" (CLI-85-18. at 7)

^

.without looking into th'e reasonableness, reliability, and significance of the surveillance testing requirements? No hearing has ever been conducted to answer.those questions.

Both the Faegre'& Benson report 1! and the Stier report 2/_

strongly suggest that the leak rate test procedure was-so defective that the Employees could not reasonably have been expected to comply'with it.

This issue should not go unaddressed. The Employees, as well as the public, are entitled to a thorough inquiry that considers all of the relevant facts surrounding the. allegations of TMI-2 leak rate data' falsification. The Employees, whose interests may be.affected by this proceeding, are entitled, 1/ Results of Faegre & Benson Investigation' of Allegations by Harold W. Hartman, Jr. Concerning Three Mile Island Unit 2 (September 17, 1980).

.2/. Edwin H. .Stier, TMI-2 Reactor Coolant Inventory Balance Testing (September 5, 1985).

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after six years of circumscribed investigations, to a hearing that'does not' sidestep.an issue that may place these allegations-in the proper yet heretofore neglected perspective.

Efficiency GPUN expresses a strong interest in judicial efficiency and economy in its opposition to the Motion. It argues, for example, that a legislative hearing "in the abstract" can provide an adequate record while conserving personnel.and financial resources. Answer at 5. However, GPUN's interest is confined'to the present proceeding and consequently neglects the broader concern with judicial efficiency and economy that is addressed by the Motion's request for the additional issue.:

This proceeding should be viewed not in the abstract, but rather in the context' set forth in the Order, which specifically contemplates' subsequent enforcement or licensing proceedings.upon a determination by the Commission:that further

- action is necessary. Any such future proceeding, as acknowledged by-GPUN,.would provide the procedural safeguards attendant to an NRC adjudicatory hearing. That proceeding would consequently afford an opportunity for the presentation of evidence that, if offered in the present hearing, could be dispositive of a determination not to initiate a subsequent enforcement or licensing proceeding.

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r Specifically, if any Employee is hereafter subjected toia Commission order to deny, revoke, or adversely. condition his 10 C.F.R. Part 55 license,.we confidently predict that-the adequacy and reliability of the leak rate -surveillance procedure will be a. central issue both as to culpability'and as to mitigation. And if six Employees become the subject _of enforcement proceedings,.the Commission can reasonably expect the same issue to be litigated six times.

That being the case, it would be shortsighted for the Commission to forego the opportunity to obtain, in this

' proceeding, full knowledge of the facts before it decides whether enforcement action is warranted. Such knowledge is also relevant to the Commission's decision whether or not to

-modify'the TMI-1 license condition that presently prevents many of the Employees from holding responsible. positions at TMI-1.

GPUN, having pled guilty, has no further interest in this issue. . The Employees do, and sooner or later the Commission must. Judicial economy and efficiency, therefore, support the adoption of an issue that will assure not merely the establishment of an " adequate hearing record" but also the compilation of the most fully. informed findings of fact possible.

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Conclusion l- For the foregoing reasons, the Commission should clarify and. reconsider the Order as set forth in the Motion.

Respectfully submitted, LEBOEUF, LAMB, LEIBY & MACRAE By h Of Counsel: ff Partner O William G. Primps 1333 New Hampshire Avenue, N.W.

Michael F. McBride Suite 1100 Molly S. Boast Washington, D.C. 20036 James W. Moeller (202) 457-7500 Marlene L. Stein

• I Smith B. Gephart KILLIAN & GEPHART Jane G. Penny 216-218 Pine Street Terrence J. McGowan P.O. Box 886 Harrisburg, PA 17108 (717) 232-1851 Counsel for Numerous 1978-79 Employees of-Metropolitan Edison Company Dated: February 7, 1986 i

UNITED STATES OF AMERICA D0tXETED NUCLEAR REGULATORY. COMMISSION ' U NRC BEFORE THE COMMISSION ,

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00CnE!1% . -nu BRANCH

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-In the Matter of ' )

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INQUIRY-INTO THREE MILE ISLAND ) Docket No. LRP UNIT 2 LEAK-RATE DATA )

FALSIFICATION )

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CERTIFICATE OF SERVICE

'I hereby. certify that I have served copies of " Reply of Numerous 1978-79 Employees of Metropolitan Edison Company to-GPU Nuclear Corporation's Answer to Motion For Clarification and Reconsideration" by deposit in the United States mail, first class, postage prepaid, or, as indicated by an asterik, by hand delivery, to the following persons this'7th day of February 1986:

~* Chairman Nunzio J. Palladino U.S. Nuclear Regulatory Commission Washington, D.C. 20555 a

• Commissioner Thomas M. Roberts U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Commissioner James K. Asselstine U.S. Nuclear. Regulatory Commission Washington, D.C. 20555

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• Commissioner Frederick M. Bernthal

,0.S. Nuclear Regulatory Commission

." Washington, D.C. 20555

• Commissioner Lando W. Zech, Jr.

U.S. Nuclear Regulatory Commission Washington, .D.C. 20555

• Dock'eting and Service Branch U.S.: Nuclear Regulatory Commission Washington, D.C. 20555 Administrative Judge James L. Kelly, Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Administrative Judge Glenn O. Bright Atomic Safety and Licensing Board Panel U.S. Nuclear. Regulatory Commission Washington, D.C. 20555 Administrative Judge Jerry R. Kline Atomic Safety and Licensing Board Panel U.S.~ Nuclear Regulatory Commission Washington, D.C. 20555 Jack R. Goldberg, Esq.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Ernest L. Blake, Jr., Esq.

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

Washington, D.C. 20036 Marvin I. Lewis 6504 Bradford Terrace Philadelphia, PA 19149 James B. Burns, Esq.

Isham, Lincoln & Beale Three First National Plaza Suite 5200 Chicago, Illinois 60602

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