ML20154C281

Response to 860214 Memorandum & Order Granting Met Ed Employees 860131 Petition to Intervene in Proceeding. Certificate of Svc Encl

ML20154C281
Person / Time
Site:	Three Mile Island
Issue date:	03/03/1986
From:	Voight H LEBOEUF, LAMB, LEIBY & MACRAE, METROPOLITAN EDISON CO.
To:
References
CON-#186-280 LRP, NUDOCS 8603050083
Download: ML20154C281 (27)

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UNITED' STATES OF AMERICA DOCKETCO NUCLEAR REGULATORY COMMISSION USNRC BEFORE THE PRESIDING BOARD 16 MR -3 P4 :28 0FFK! .. r;,[:

00Chiintu . Jo.,u'

) BRANN In the Matter of )

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

FALSIFICATION ) .

RESPONSE OF EMPLOYEES TO MEMORANDUM AND ORDER OF FEBRUARY 14, 1986 .

Twenty-five 1978-79 employees of the Metropolitan Edison Company (" Employees")1' who worked at Three Mile Island Unit 2 ("TMI-2") filed a petition to intervene in this proceeding on January 31, 1986. In a Memorandum and Order dated February 14, 1986, (" Order"), the Presiding Board

(" Board"), inter alia, granted the petition,l' In the Order, the Board invited written comments by the parties on certain issues to be discussed at the prehearing conference to be held March 7, 1986. The Board also requested the attorneys for the ,

Employees to respond to specific questions regarding representation of the Employees. The Employees hereby submit 1/ In the Memocandum and Order issued February 14, 1986 at 2, the Employees are inadvertently referred to as employees of GPUN, i.e., General Public Utilities Nuclear Corporation. In fact, the Employees were employed during 1978-79 by Metropolitan Edison Company (" Met Ed").

2/ A 26th 1978-79 employee filed a late petition to.

intervene which was also granted in the February 14, 1986 Order.

8603050083 860303 PDR ADOCK05000ggO 35o5

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4 .- -t for the Board's consideration the following responses and i

comments on the matters addresued by the Ordet.

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The Board has proposed conducting the hearing in two j phases. Phase I would consist of testimony by the parties.and  ;

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other witnesses on background and technical information, l'

investigation results, and the knowledge and/or alleged'  :

involvement of individuals in leak rate testing at TMI-2 during i

l the relevant time period Phase II would consist of-testimony i

by additional witnesses, if any, to resolve the relevant #

issues. Order at 5. -

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The Etaployees suggest that Ph.ase I could J

constructively be divided into two phases, A'and B. Phase I-A ,

would consist of all technical background testimony. Phase I-B

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would then address alleged involvement in leak rate testing. ,

i Between these two phases, the Employees suggest that the Board i

may wish to go to TMI-2 for an on-site " view." Tne purpose of l

i the proposed division of Phase I and of the view is to'incure ,

that the Board, prior to hearing testimony on-alleged

,i involvement in leak rate testing, is acquainted to its i

! satisf action with the f actual and technical background .

regarding operations at TMI-2. Hearing all technical testimony

't first and seeing the actual layout of instruments and controls in the plant would help tne Board to put subsequent testimony I

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regarding alleged individual involvement in the proper. factual j context.

The Board has proposed an approximate hearing .

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l. schedule, ~With respect to Phase 1, we believe it would'be t

realisti.c to allow six weeks for completion, i.e., Eid-April to

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M6y 30. The schedule for Phase II can better'be addressed at 1 7 I the end of Phase I. Following the conclusion of Phase II, we i

j Would suggest at least 60 days for proposed fihdings, assuming j s .

(as we do) that detailed findings for each of a large number of ,

) individuals will be required.

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Location of Heari.ng

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,! The Employees have no objection to holding the' hearing

• in the Washington, D.C. area. Order at S.

[ However, we wish to bring to the Beard's attention the

! potential problem that non-parties may present. Se'Jera l ,

non-parties whose testimony is significant to the hearing  ;

) inquiry may be cubpoenaed. Tnose key witnesses may not want to i ,

travel to the Washington, D.C, area. Accordingly, the

] Employees suggest that, if this pronlem were to arise, the

, Board consider holding one-day hearings at. locations covenient -l l .

to these witnesses, the parties, and the Board or authorizing

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depositions of'the subpoenaed witnesses at those locations,  !

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Witnesses 7and Prefiled___Testimont '

. and s Documentary _ Evidence

.l. The Ecployees believe that these two topics'are closely interrelated and therefore should be discussed together, ,

The Board has stated that the Stier Report, the Report- .

of the GPU' Assessment Panel, and the NPE/OI Report,l' when-available,-may be accepted as documentary evidence in this

{ hearing, . Order at 6-7, The Employees propose that the Board ,

l also require the submittal as evidence of the.Faegre & Benton Report, which also provides valuable material on issues

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relevant to this hearing. j i The Employees agree that the Stiet and NRR/OI Reports l contain certain background and technical information that the

! Soard should heat and consider. However, the Employees ooiect

] to consideration by the Board of any documentary evidence that draws conclusions as to the. culpability of any individual or 4

characterizes the prior testimony of any witness. Such i evidence would include, but not be limited to, portions of the Stier Report and the HRR/OI' Report and all of the'GPU Assessment Panel Report. -

1 The Board has stated that it expects to hear testimony I ,

i from the parties, the Nuclear Regulatory Commission r

i i 3/ Obviously, our comments on the NRR/DI' report are *

, based on assumptions as to what it will contain. If our assumptions prove to be: wrong, we may change our position. ,-

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, (' Commission" or "NRC") Staff, the Office of Investigations, 4 and Mr. Stier, Order at 6. The Employees believe that Mr, Stier is not an appropriate witness in any sense,. and i

object to his testifying. The report bearing his name is, apart from the technical information collected by MpR j Associates,1' a document that draws conclusions as to j

culpability. The Employees have already stared their objection to those portions of the Stier Report. Mr. Stier's expert testimony would presumably be of the same inappropriate and 4 objectionable nature. Instead of Mr. Stier, the Employees {

propose that members of MpR Associates, whose non-conclusory f

technical report is appropriate documentary evidence, be called .

I as witnesses, r

l The Employees further propose that.the Board require -i t -t testimony from several non-parties, including but not limited 1

} to the authors of all material accepted as documentary evidence f (e.g., the NRR/OI Report and the Faegre & Benson report) and ,

i NRC Inspection and Enforcement employees (particularly Donald )

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! Haverkamp) who conducted inspections or reviewedfreports.from i

i THI-2 during the relevant period. The Employees emphasize that i

] it would be in the best interests of all concerned if the Board were to require testimony from anyone.whose written material.is  ;

l accepted as documentary evidence in this proceeding.

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4/ This information primarily appears-in Volume IV of l the multi-volume Stier Report.

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The Employees currently do not propose a specific order of witnesses, other than an order that 4.s in accordance with the suggested sub-division of phase I.

The Board has noted that it anticipates requiring the parties to file written testimony in advance of their appearances. Order at 6. The Employees agree with the Board tnat it is desirable to require parties to submit prefiled testimony.

Prior Testimony The Employees have serious reservations about the use of prior statements in this proceeding. To begin with,.the  ;

Employees object to any use of prior testimony unless such testimony was a) taken under oath, b) transcribed verbatim by a court reporter, and c) taken with counsel for the person being questioned present (or waived); and d) the witness had an opportunity to make transcript corrections. Even where prior statements were taken with those safeguards, their use should be circumscribed, First, no one's prior testimony should be accepted as evidence against h,im unless he has been given the opportunity to explain and supplement that testimony before this Board. Second, no one should be found guilty of culpable misconduct based upon another person's priot statements unless that person has come forward or been required to appear before the Board and been questioned concerning his prior testimony

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and the person implicated or accused has been given the

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opportunity to explain or rebut the other person's. testimony. i Where a witness does appear before the Board, we recognize that it may be appropriate to use his prior testimony to cross-examine, impeach, or rebut what he tells the Board.

We are prepared to discuss appropriate procedures to facilitate the use of prior testimony for such purposes.

Questions for Witnesses The Board has noted that it will solicit questions for witnesses from the parties and requests suggestions on appropriate procedures for handling the solicited questions.

Order at 8.

The Employees submit that oral cross-examination.of witnesses by the Board and other parties is a less cumbersome and more sensible approach to the questioning of witnesses than

.the Board's solicitation of written questions f rom the parties.1' In the event that the. Board should employ the much less convenient and more time-consuming approach of soliciting questions, thentheEmployeesproh5s'ethat5 party's suggested questions not be served on all parties, but only be given to the Board. If the Board pursues that approach, it 5/ The Employees' motion to allow cross-examination of witnesses was denied by the Commission on February 13, 1986.

CLI-86-03, slip op. at 3. Tho Commission noted that the Board may request authorization to permit cross-examination. Id.

i should also provide for the submission of. follow-up questions ,

"on the spot" during the hearings.

Sequestration of Witness,es The Employees object to the sequestration of any witness. The issue of sequestration came up before the '

Licensing Board in the Dieckamp mailgram hearings. There, in denying a motion to sequester Mr. Dieckamp, the Licensing Board noted that he was in a position comparable to an accused and hence had the right to be present to hear the accusations against him. We submit that the Employees have the same right in this proceeding. It is wrong to sequester any " accused".

Further, the Licensing Board ruled in the Dieckamp mailgram hearings that sequestration of other witnesses was unnecessary -

because of the number of times that the witness had previously testified on the same subject. Tha same principle applies here.'

Lastly, the Employees note that the issue of sequestration is largely moot. We do not anticipate that any of the Employees, or any other witness, will be present at the hearings for more than a day or two--immediately before, during, and perhaps shortly after the time he is scheduled to testify.

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Role of Counsel '

The Board is considering whether it should permit '

objections by counsel to:the Board's. questions or: parties' written questions put to witnesses'by the Board. Order at 8.- -

The Board's inquiry again suggests that oral cross-examination is the most convenient and appropriate method ,

to follow. However, should the Board employ the indirect-j f

method of eliciting testimony by written questions,Lthe 4

Employees propose that appropriate objections by counsel to-questions put to witnesses either by the Board or through.the

! r Board by the parties be permitted, The Employees also suggest that-oral direct And cross-

examir.ation of witnesses who are appearing in response to i

subpoenas would be the most efficient and convenient means of presenting P. heir testimony, j i

Role of the NRC Staff

, and Ex Parte Communications -

, These topics are necessarily related, so we shall i

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j respond to tnem together.

! The Employees believe that during the course of the 4 t

, hearing the NRC Staff will inevitably perform two functions: '

I advising the Board, on the one hand; and -presenting evidence,  ;

i including written repcrts and oral tectimony by NRC employees, ~

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P j on the other hand. If Staff members are testifying or acting 3 as counsel for NRC witnesses, it is clearly inappropriate for  ;

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L them also to advise the Board. Hence, even though this hearing is legislative and not adjudicatory in nature, the Board should consider creating procedures to enforce the traditional '

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division between Staff functions to avoid potential e3 parte '

communications problems. Specifically., the_ Board should ,

d provide that NRC Staff members who may appear as counsel or witnesses, or who helped to prepara any report that may'be received as evidence, roay not consult with or advise the Board concerning the conduct of the hearings or the Board's decision.

The Employees note that their counsel would avoid anf-ex parte communications with those Staff members who are.

designaled to act as advisors to the Board. However, there is no reason to bar counsel for the Employees from communica~ ting with those Staff members who are testifying as witnesses or acting as counsel presenting evidence.

Regresentation of Certain GPUN Employees The Board has direct.ed counsel for the Employees.to respond to certain questions concerning the multiple representation of the E.T.ployees in this proceeding. 'The Board's concern with this issue is understandable. However, we believe that it is also misplaced, Killian & Gephart and LeBoeuf, Lamb have been representing these same clients since April 1980, and we have appeared on behalf of some or all.of them in connection with investigations-by three Federal Grand Juries, in four separate Federal court proceedings, in two j I

previous licensing board hearings, and in several.different 4

investigations by the NRC. Throughout that six-year period, we L

have'been able to represent our clients:in allJ those proceedings without encountering any, actual conflict'of' I

interest such as-to require our withdrawal.

hhe propriety of our multiple representation hasjnever

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• 4 previously been ques'tioned;byJthe Commission, its Staff, the Office of Investigations, or prior licensing' boards. 'During

! the~ course of our representation before the first Grand Jury, the Government did object. The Department of Justice filed a motion to disqualify both firms. That motion was premised on the same concerns as the Board has expressed. The U.S.

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District Court for the Middle District of Pennsylvanha denied i the motion. In the Matter of May 1980 Harrisburg Grand Jury, No. Misc.81-038 (M.D. pa., filed April 8, 1981). (A copy of

the decision of the District Court is appended to this respEnse as Attachment 1.) The same principles that led the U.S.

District Court to deny the Government's motion to disqualify

, e the firms apply here.

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With tbsu background, we turn to a-response to the 4

Board's specific questions

Q

1 Do you agree that conflicts of interest of the i

kind we have described might arise in the i proceeding if you serve-jointly as counsel for-i the twenty-six employees? If not/: please explain.

1 f Yes.

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2. Describe any arrangements you will make to ensure P

(, separate and independent advice is given to employees having conflicting or potentially conflicting interests.

From the inception of our representation in 1580, we have dealt with each client separately, as an individual. Each client has been interviewed separately concerning his possible involvement in matters under l' investigation; we have told each client that information given to us by him is subject to the attorney-client privilege and will not be revealed to any other client without prior notice and consent. Each client has been advised that there is a potential for conflicts of interest with other clients, and the E ,

nature of those potential conflicts has been fully explained to each client, so that their decisions are informed ones. We have told each client that if we are of the opinion that there is an actual conflict of interest, we will so advise the individuals concerned and explore with them the necessity or desirability of obtaining separate counsel. We have advised the. clients that, in the event of an actual conflict of interest, we would withdraw unless each client consented to our continuing representation. Finally, each client has repeatedly been advised that he is to make a personal decision concerning his participation or cooperation in any particular proceeding, including this one.

3. Has the possibility of conflicts,-when and if they arise, and the scope of your duties as counsel been explained to the employe'es?

Yes.

4. Have the employees consented in writing to your representation, including a knowing waiver of any

> objections to dual representation?

Yes. Each employee was individually interviewed and counseled as described in the previous response. Each employee then signed a letter similar in form and content to Attachment 2, referred to in the next response.

5. Are your fees to be paid by GPUN or any other entity having an interest in the outcome of this 4

inquiry? If so, what arrangements have been made to avoid the possibility of conflicts of interest or interference with the independent exercise of professional judgment because of the fee arrangements?

Our fees are not being paid by GPUN.

Pursuant to 15 Pa. Cons. Stat. Ann. S 1410 (Purdon Supp. 1985),

Met Ed has agreed to indemnify each of our clients against expenses reasonably incurred, including legal fees, T this and i

other proceedings arising out of the course of his employment.

f Met Ed's offar of indemnification is set forth in individual

j. letters from Met Ed to each of our clients. A specimen copy of such a letter is appended as Attachment 2. We understand that.

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d a similar offer of indemnification has been extended to, and accepted by, other former employees whom we do not represent, including Messrs. Hartman, Herbein, and Miller.

We were informed in 1980 that Met Ed had decided to offer its employees separate representation because it had concluded that there was a conflict of interest between Met Ed and its employees and that company counsel could not represent the employees.

From the outset of our representation, it has been clearly understood that the two firms do not represent Met Ed,.

that Met Ed has absolutely no control over our representation, and that we can and will take positions in litigation that may be different from, or contrary to, Met Ed's wishes. Our agreement with Met Ed concerning our independent role is more fully set forth in a letter dated April 23, 1980, and accepted by Met Ed on April 24, 1980, a copy of which is appended as Attachment 3.

The decisions cited by the Board in its Order deal with cases in which the same attorney represented an employer and its employees or a labor union and individual officers or members of the union during an investigation. Because it is clear that we do not represent Met Ed or GpUN, those cases have no application here. Instead, we believe that our arrangement with Met Ed and our representation of its former employees is entirely proper based upon the analysis of In Re Special Grand Jury, 480 F. Supp. 174 (E.D. Wis. 1979). See generally, 4

Mickenberg, Grand Jury Investigations: Multiple Representation and Conflicts of Interest in Corporate Criminality Cases, 17 Crim. L. Bull. 5 (1981).

Respectfully submitted, LeBOEUF, LAMB, LEIBY & MacRAE By N , Jf(

Of Counsel:

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 Smith B. Gephart KILLIAN & GEPHART Jane G. Penny 216-218 Pine Street Terrence J. McGowan Box 816 Harrisburg, PA 17108.

(717)'232-1851 Attorneys for Numerous 1978-79 Employees of Metropolitan Edison Company March 3, 1986

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Attachment 1 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA IN THE M ATTER OF )

MAY 1980 HARRISBURG ) NO. MISC. 81 38

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R O nited States has filed a motion to have thi hhk[ gify the law firms of LeBoeuf, Lamb, Leiby and MacRae of New York and Washington, D.C. and Killitn and Gephart of Harrisburg, Pennsylvania from representing 33 present and former emplefees of Metropolitan Edison Company (Met Ed) who have been called or may be called to testify before the May 1980 grand jury which has been sitting in Harris-burg. The grand jury investigation relates to the possible falsification of,certain safety tests at the Three Mile Island nuclear facility. Met Ed retained the two firms pursuant to the authority of Pennsylvania's Business Corporation Law, in particular 15 Pa. C.S.A. 5 1410. It is undisputed that neither of the firms represents or has represented Met Ed. Nor has the government produced any evidence to refute the claim of the two firms that they represent the interests of the em-ployees only, and are acting with complete independence from Met Ed, aside from billing.

The government seeks disqualification on two bases. It states that conflicts of interest exist between the witnesses represented by the firms.

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It also maintains that the multiple representation will impede the grand jury investigation.

In this circuit disqualification based on a conflict of interest has been upheld only where there has been a demonstrable actual conflict which was not effectively waived by the client. In the Matter of the Grand Jury Empaneled January 21.1975, 536 F.2d 1009 (3d Cir.1976),

In re Grand Jury Investigation, 436 F.Supp. 818 (W.D. Pa. 1977),

aff'd per curiam, 576 F.2d 1971 (3d Cir.) (en banc), cert. denied, 439 U.S. 953- (1978) . On the facts before it, the court finds no actual con-flict of interest. The government has made no offers of imriuriity to any of the Met Ed employees involved here. Counsel from the firms represent-ing the employees have stated unequivocally that, if an offer of immunity were made to one of their clients, that client would be advised to seek separate counsel. There is undoubtedly a potential conflict of interest in this multiple representation, but, until that potential ripens, judicial inter-vention would be premature. In re Grand Jury Investigation, supra.

The Court of Appeals for the Third Circuit has not yet decided whether disqtialification should be ordered if there is evidence that multi-ple representation is impeding the effectiveness of a grand jury investi-gation.1 However, it is clear that the conduct which would merit the sanction of disqualification would have to be something far more egregious than that occurring in this case. None of the witnesses who have thus I

In' the Matter of the Grand Jury Empaneled ' January ~21,1975, supra, spoke of this issue without deciding it. The court ruled that on the facts of the case disqualification would not be warranted on a theory of grand jury impediment. In that case nine witnesses, represented by the same counsel, had taken the Fifth Amendment before the grand jury.

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far appeared before the grand jury have invoked the Fifth Amendment.

The government states that there have been certain similarities in the testimony of the witnesses. It also claims that the testimony of one witness before the grand jury differed in material respects from state-ments the same witness made during an investigation by the Nuclear Regu-latory Commission. These facts by themselves do not demonstrate the quality of grand jury impediment which might merit disqualification of counsel. The motion of the United States will be denied.

O ob 5 a H. Rambo '

Un ted States District Judge Dated: April 8,1981 l

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Attachment 2

.detr:politsa Edison Company

'- Post Omce Box 480

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EIN Jj -s Middletown, Pennsylvania 17057 717 944-4041

• wnter's Direct Disi Numoer April 18, 1980 CONFIDENTIAL AND PERSONAL Dear Mr.

The NRC staff has initiated an investigation and has indicated that it wishes to interview you and possibly to take your deposition. legal Some employees have requested that Met-Ed provide independent counsel to advise them in connection with these matters and we have done so. It is the purpose of this letter to summarize the arrangements that we have made to that end, and the applicable provisions of the

/ Pennsylvania Business Corporation Law.

Since it is not clear what the scope of the NRC staf f investiga-tion =ay be, we have arranged for the engagement of the law firms of LeBoeuf, Lamb, Leiby ind MacRae (of Washington, D.C. and New York City) and Killian & Gephart of Harrisburg, Pa. jointly to represent you and other past or present employees of Met-Ed that may be involved in the investigation and such other investigations that asy arise out of the NRC investiga tion. The LeBoeuf firm has substantial expertise in NRC matters and the Killian firm has a substantial practice' in Pennsylvania matters, and we believed that the combination would be beneficial to you.

Neither of these firms now represents, or to the best of our knowledge has ever represented, Met-Ed or its affiliates, nor will they be subject to Co=pany direction. The LeBoeuf firm is outside counsel to the Edison Electric Institute and has represented the Institute (of which Met-Ed is a member) and electric utility groups including Met-Ed or its af filiates f rom time to time. We and they do not believe that this give., rise to any conflict or compromises in any way their independence in representing you and other Met-Ed past or present employees that may be involved in the investigation, but you . re, of course, free to make other arrangements for your own representation if you desire. ,

Neither we nor the two firms have any present inf ormation which f would indicate that they cannot represent all past and present Met-Ed If, employees likely to be involved in the NRC staff investigation.

however, any conflict should develop, they will advise you of that fact.

i Metroochtan Edison Company rs a Member of tne General Putic Utates System

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April 18,1980 ' )

j CONFIDENTIAL AND PERSONAL  !

The foregoing arrangments were made pursuant to Section 1410 of director. l the Business Corporation Law which permits Met-Ed to indemnify a of ficer or employee against expenses (including actorney's fees), judg-ments, fines and amounts paid in settlement actually and rea ~

i n yr r d f ai.th and in a manner he reasonably believed to be in, or notto any criminal  :,;

interests of Met-Ed and, with respect opposed to, the b'estaction or proceeding, had no reasonable cause to believe unlawful. Such indemnification is permitted if the board of directors (by a majority vot,e of a quorum consisting of directors who were not parties to such proceeding) derarmines that of At this atage thethe!

individual NRC staf has met the f investi-applicable standard of conduct.

gation, the board of directors does noe heve the f acts which would permit it to make such a determination but it has every expectation that the f acts, as they are ultimately developed, will enable it to make such a determination.

Ordinarily, indemnification is provided af ter the fact - i.e. ,

is a reimbursement of amounts capended by the director, of ficerSection However, or employee, af ter final disposition of the proceeding.

1410 also permits Met-Ed to pay such expenses of anin undertaking advance of the by final the disposition of the proceeding, upon receipt shall individual involved that he will repay such amount unless it ultimately be determined that he is entitled to be indemnified by Met-Ed.

The Met-Ed board of directors has authorized the payment in advance for the expenses for assistance to you by the LeBoeuf and Killian firms if you provide Met-Ed with such an undertaking.

Attorneys from the LeBoeuf and Killian firms21, will1980 be available at at the Unit I General Conference Room on Monday, April 10:00 a.m. to provide information and answer any questions concerning NRC If you would like to speak procedures and your rights under Federal law.with one of these attorneys an appointment for a more convenient date and time by calling Killian &

Gephart at 232-1851. If you already have an attorney, you may wish to advise that attorney of the meeting. If you have any questions, please f eel f ree to contact any of the fallowing accorneys:

Jane C. Penny KILLIAN & GEPHART Smith B. Gephart 216-218 Fine Street Harrisburg, PA 17101 (717) 232-1851 LeBOEUF, LAN3, LEIBY & MacRAE Eugene R. Fidell 1333 New Hampshire Ave. , N.W. Michael F. McBride Washington, D.C. 20036 (202) 457-7500 0

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.  ; yoge thres ril 18, 1980 CONFIDDITI AL AND PERSONAL f

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- If the foregoing to satisf actory to you, will you

'., plesse st F ,n and return the enclosed copy of this letter which wt11 constitute such an undertaking by you. It will not be necessary for you to agree to this arransesent in order to j' participate in Honday's meeting with these firms or make an

initial contact with them if you are unable to attend this

, me eti ng .

Tor comp 1cteness, vn wich to not e that Met-Ed will be making its ova Lnvestigation, independently of the NRC s taf f inves tiga tion, in ordar that, Met-Ed will itself have full knowledge of the pertinent facts.

Any questions shich you may have t esardin3 the inte rpretation of this arranaccent should be directed to John Wilson at (717) 944-9793.

Sincerely, Robert C. Arnold Senior Vice Presidcot I acknowledge reief pt of the foregoing letter. Th e a r ra nt.e-ments therein cet forth are natisfactory to ec. I hereby undertake that I will repay te Met-Ed the amounto expenied by it for ey acceunt unlese it shall ult inately be dete rutned that I an entitled to be indcenified by tiet-Ed.

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Attachment 3 LEBO EU F, L AM S, LEISY & M AC RAE 1333 NEW HAMi.sMimE AVENUE.N.W.

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e AOnetTT.D TO th. Dist.tC' QF COLune.iA .a.

John F. Wilson, Esq.

Metropolitan Edison Company Three Mile Island Nuclear Power Station Trailer 14 P.O. Box 480 Middletown, Pennsylvania 10757 Re: TMI Employee Reoresentation

Dear Mr. Wilson:

This letter will confirm that Metropolitan Edison Company

(" Met-Ed") has retained our firm to provide independent legal services in conjunction with the firm of Killian & Gephart, of Harrisburg, Pennsylvania, for certain past and present Met-Ed employees in connection with the current Nuclear Regulatory Commission Office of Inspection and Enforcement Investigation l No. 50-320/80-06 ("the Hartman Investigation") and such other investigati ha arise out of that investigation.

W nborderThis 7 letter suc'n rizes the principles to be observed in to fulfill our responsibilities as independent counsel for those past or present employees who seek our representation

(" Participant (s)"). Our clients will be the Participants, and not Met-Ed. Met-Ed has agreed to pay ou. fees and expenses in advance as permitted under Section 1410(E) of the Pennsylvania Business Corporation Law. We understand that that arrangement was approved by the Met-Ed Board of Directors on April 18, 1980.

This letter will also set forth rules to govern relations between our firm and the Killian firm, on the one hand, and Met-Ed, on the other. The following enumeration is without

f prejudice to any further arrangements that may prove to be necessary as our representation. evolves.

l. Killian & Gephart, being located in Harrisburg, should be deemed the basic avenue of communication

- between Mac-Ed and our two firms. Correspondence to either firm, however, should include a carbon copy for the other, except with respect to corres-and pondence regarding fees, payments of invoices, the like;

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2. Met-Ed will make available to us, upon reasonable e

notice, any non-proprietary, non-attorney work product documents, including interview notes from NRC interviews, relating to the investigation of any Participar.t;

3. We will provide you with a release from each Parti-cipant whose employee and/or training files are requested by us;

4. Met-Ed will keep us advised' fully and in a timely

fashion of any requests by personnel of the NRC

or other federal agencias for (a) Company records relating to any Participant, or (b) an opportunity l

to interview any Participant;

5. Met-Ed will not object to our participation in any interviews by federal officials of Participants; s'

\

6. Met-Ed will not provide legal advice to any Parti-cipant except upon reasonable notice to us as in- /

dependent counsel, but the Company may, upon request by the Participant, explain the arrangements

by which the Company has agreed to provide independent outside counsel; t

l 7. Met-Ed will promptly advise us in the event any Participant indicates to Met-Ed a desire to terminate l

the attorney-client relationship with us; 4

8. We will promptly advise Mec-Ed in the event (a) any

Participant indicates to us a desire to terminate the attorney-client relationship with us, or (b) it becomes apparent that we can no longer represent certain Participants because of a conflict of interest; i

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9. In the event it becomes apparent that we can no longer represent any Participant (s), we will 1

withdraw from such representation and so advise the Participant (s) and Met-Ed;  ;

f 10. Met-Ed will 3rovide suitable private meeting rooms at or near the Three Mile Island Station for use by us in connection with our representation of-3 Participants;

11. Met-Ed will advise us in a timely fashion before it enters into any negotiations with the NRC with a view to resolution of any outstanding investiga-7

tions relating to Participants;

't l 12. Unliss otherwise required by competent authority, l

Met-Ed will take no adverse action against any i Participants who invoke the constitutional privilege

! against self-incrimination because of the invocation i

of that privilege, or who refuse to be interviewed

) by Mec-Ed during the conduct of its own investigation J

into these matters, because of such refusal;

) 13. Met-Ed will give reasonable notice to the Killian firm in the event the Company's investigation

! proposes to interview any Participant (s);

j 14. Met-Ed will permit us, including paralegal, secretarial and investigative personnel in our employ, reasonable access to all nonrestricted areas of the Three Mile i

Island Station, consistent with established plant i security and health physics procedures; and j 15. Our firms will render separate monthly statements j .

' to Met-Ed (to your attention) on the basis of our

usual respective hourly time charges, and such out-i of-pocket disbursements as may be incurred. Met-Ed will pay these statements as rendered. .Unless and until required for the purpose of seeking reimburse-l ment under the Pennsylvania Business Corporation Law, i

j 15 Pa. C.S . A. sec.1410, we will not advise Met-Ed i

of the allocation of time charges or disbursements

as to particular Participants.

For convenience, we have attached to this letter a copy of l

the standard letter, dated April 18, 1980, provided by Met-Ed I i to potential Participants.

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s I would be grateful if you would indicate your acceptance of the foregoing on behalf of Met-Ed by completing the endorsement below and returning a completed copy to me;at your earliest convenience.

Very truly yours, LeBOEUF, LAMB, LEIBY & MacRAE By . b[  !

Eugene R. Fidell

" Partner Attachment j cc: Smith B. Gephart, Esq.

Accepted this j day of April, 1980, by on behalf of Metropolitan Edison Company.

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UNITED STATES OF AMERICA Ogp{[D NUCLEAR REGULATORY COMMISSION BEFORE THE PRESIDING BOARD 16 NU? -3 Pd :28 i

0FFICi t;- - o .. -:

00Cnf.lihu e. SE e V Cf.

BRANCH

)

In the Matter of )

)

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

FALSIFICATION )

)

f CERTIFICATE OF SERVICE I hereby certify that I have served copies of " Response of Employees to Memorandum and Order of February 14, 1986" by e

deposit in the United States mail, first class, postage prepaid, or, as indicated by an asterik, by hand delivery, to the following persons this 3d day of March, 1986:

• 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 j Atomic Safety and Licensing Board Panel j U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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• Jack R..Goldberg, Esq.

Office of the Executive' Legal' Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Docketing.and Service Branch-(3)

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 James B. Burns, Esq.

Isham, Lincoln & Beale Three First National Plaza Suite 5200 Chicago, Illinois 60602 Michael W. Maupin, Esq.

Hunton & Williams P.O. Box 1535.

Richmond, VA 23212 Ms. Marjorie M. Aamodt 200 North Church Street Parkesburg, PA 19356 Marvin I. Lewis 6504 Bradford Terrace Philadelphia, PA 19149

/ y' Marlene L. Stein i

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