ML20207Q373
| ML20207Q373 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 01/23/1987 |
| From: | Voigt H LEBOEUF, LAMB, LEIBY & MACRAE |
| To: | |
| Shared Package | |
| ML20207Q285 | List: |
| References | |
| LRP, NUDOCS 8701270231 | |
| Download: ML20207Q373 (26) | |
Text
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. UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION
!BNPC BEFORE THE PRESIDING BOARD
,87 JM 23 P4 :26 CFF:
00C-
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3 In the Matter of
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INQUIRY INTO THREE MILE
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. Docket No. LRP i
-ISLAND UNIT 2 LEAK RATE
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DATA FALSIFICATION
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MEMORANDUM OF LAW OF THE NUMEROUS EMPLOYEES
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Introduction The Numerous Employees hereby submit a Memorandum of Law in support of their Proposed Findings of Fact and
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Conclusions of Law.
The Memorandum is offered to provide the Board with a legal framework within which to conduct the task of issuing its Recommended Decision.1' 1/
The Numerous Employees do not purport to link each record fact to a principle of law or to outline the substantive
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law applicable in the unlikely event that any subsequent proceedings ensue.
Further, the Numerous Employees have not briefed certain issues that may be raised only before the Commission, or in review of any action the Commission may take against individuals, because these issues are not before the Board (see, e.g.,
CLI-86-3, 23 N.R.C.
52 (1986)) and are
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germane only if and when the Commission takes further action.
The Numerous Employees hereby expressly reserve their right to raise all issues concerning potential actions against them or their licenses until such time as those actions may be j
taken.
kD
[hhwm.48701D3 3
05000320 C
D PDR
i)
Argument I.
THE BOARD SHOULD APPLY THE " CLEAR AND CONVINCING 9
EVIDENCE" STANDARD IN REACHING FACTUAL FINDINGS IN THIS PROCEEDING.
One of the most important questions that must be decided by the Board prior to issuing its Recommended Decision D
is the appropriate evidentiary standard to apply.
Applicable precedent, the nature of the Board's inquiry, the interests at stake herein, and due process concerns require that adverse O
findings of fact must be based on the " clear and convincing" evidentiary standard.
" Clear and convincing" is an intermediate evidentiary standard; it requires less evidence than "beyond a reasonable doubt", but more than a
" preponderance" to support factual findings.
" Clear and convincing" evidence is that measure or degree of proof that will produce in the mind of the trier of fact "a firm belief or conviction as to the allegations sought to be established."
Hobson v.
Eaton, 399 F.2d 781, 784 n.2 (6th Cir. 1968), cert.
denied, 394 U.S. 928 (1969) (citation omitted).
A.
Applicable Law Supports the Use of a " Clear
)
and Convincing" Evidentiary Standard In This Legislative Hearing.
The Supreme Court has held that, in adjudicatory proceedings before federal administrative bodies conducted O
under the Administrative Procedure Act ("ApA"), the proper evidentiary standard is a " preponderance of the evidence."
Steadman v.
SEC, 450 U.S.
91 (1981); see 5 U.S.C. S 556(d)
D D
D (1982).
Because this inquiry is not, by the Commission's own design, an adjudicatory proceeding, nor is it being conducted D
under the APA, the standard of proof announced in Steadman does not control this proceeding.
Rather, the Board should apply the intermediate standard of " clear and convincing" evidence in D
reaching its findings of fact.
The holding of Steadman is expressly limited to proceedings conducted under Section 7 of the APA, 5 U.S.C.
D S 556.
This legislative proceeding does not fall under that section.
Section 181 of the Atomic Energy Act of 1954, as amended, reads, in pertinent part:
"The provisions of subchapter II of chapter 5
[i.e.,
5 U.S.C.
SS 551-559),
shall apply to all agency action taken under this chapter, and the terms ' agency' and ' agency action' shall have the meaning specified in section 551 of Title 5."
42 U.S.C. S 2231 (1982).
The APA reads, in pertinent part:
"'[A]gency action' includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, a failure to act; 5 U.S.C. S 551(13) (1982).
This proceeding is solely a fact-finding inquiry in which the Board is limited in its authority to issuing a Recommended Decision setting forth certain findings, and is not " agency action" as defined by the O
APA.
Therefore, the holding of Steadman does not apply here.
D D
4D B.
The Nature of This Proceeding and the 1
Interests at Stake Herein Support the Use of the Clear and Convincing Evidentiary ap Standard.
Because the holding of Steadman does not apply, an independent analysis to determine the appropriate evidentiary Ap standard must be performed.
The relevant factors to consider include the nature of the proceeding and the interests at stake herein.
This analysis inexorably leads to the conclusion that NB the Board cannot make adverse findings against individuals in the absence of clear and convincing evidence.
In Addington v.
Texas, 441 U.S.
418 (1979), the ND -
Supreme Court, in a seminal discussion, explained the differences among the varying evidentiary standards applied in different proceedings and the policies underlying these ED standards:
"The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to
' instruct the factfinder concerning the degree of FJ confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.'
The standard serves to indicate the relative importance attached to the ultimate decision.
I3
" Generally speaking, the evolution of this area of the law has produced across a continuum three standards or levels of proof for different types of cases.
At one end of the spectrum is
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the typical civil case involving a monetary D,
dispute between private parties.
Since society has a minimal concern with the outcome of such j
suits, plaintiff's burden of proof is a mere l
preponderance of the evidence.
! 1
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)
"In a criminal case, on the other hand, the interests of the defendant are of such magnitude that historically and without any explicit gr constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.
In the administration of criminal justice, our society imposes almost the entire risk of error on itself.
)
"The intermediate standard, which usually employs some combination of the words ' clear,'
' cogent,' ' unequivocal,' and ' convincing,' is less commonly used, but nonetheless 'is no stranger to the civil law.'
One typical
)
use of the standard is in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant.
The interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce the risk to the 3._
defendant of having his reputation-tarnished erroneously by increasing the plaintiff's burden of proof."
441 U.S. at 423-24 (citations and footnote omitted).
3 The interests of the Numerous Employees are doubtless "more substantial than mere loss o'f money."
Their very abilities to earn a livelihood and to function in their chosen 3
vocations are ultimately at stake.
The nature of these interests, linked with the nature of the proceeding (an i
investigation in which quasi-criminal wrongdoing by the Numerous Employees has been alleged) requires the application of a commensurate evidentiary standard.
The Supreme Court has held that when the nature of the h
proceeding and the sanctions or hardships that can be imposed require it, a higher standard than the traditional
),
l
. =
J preponderance standard should be applied.
See Woodby v.
- INS, 385 U.S.
276, 286 (1966); see also Sea Island Broadcasting 4
Corp.
v.
FCC, 627 F.2d 240 (D.C. Cir.), cert. denied, 449 U.S.
834 (1980).
In Sea Island, the court ruled that FCC license revocation proceedings must be governed by a clear and 4
convincing standard of proof.
Therein, the court specifically noted that one factor compelling the intermediate standard was that the holder of a FCC license had a "' security' of interest" e
in the license as well as an expectation of renewal.
627 F.2d at 244.
Similarly, in Woodby, the Court required the clear and convincing standard of proof for a deportation proceeding, RI taking into account the severe hardships the sanction works upon the individual.
385 U.S.
at 285-86.
As in Sea Island, the Numerous Employees' professional status and reputation are at issue.
As in Woodby, the actions that might ultimately be taken against them would cause severe hardships.
Accordingly, the same clear and convincing evidence standard should apply I
PS here.1' C.
The Failure to Apply the Clear and L,
Convincing Evidentiary Standard May Violate J
the Numerous Employees' Due process Rights.
l The Supreme Court has squarely held that procedural l
due process is required where a license may be revoked.
In re
'4 l
l 2/
See also Matter of Williams, 464 A.2d 115 (D.C.
I 1983) (clear and convincing standard applies to disbarment proceedings).
4 l O
Ruffalo, 390 U.S.
544, 550 (1968).
The Numerous Employees have 1
certain fundamental due process rights that may be violated if 3
adverse findings are based on less than clear and convincing evidence.
Under Board of Regents v.
Roth, 408 U.S.
564, 576-77
)
(1972), adverse employment actions taken by governmental bodies must comport with basic principles of due process.
Several of the Employees are licensed nuclear plant operators who have a B
property interest in their licenses; without that license, they cannot work as operators.
See 10 C.F.R. S 55.3.
Many others are employees of facility license holders and are subject to a b
similar risk by virtue of that employment.
As the Board acknowledged early in this proceeding, there is a realistic possibility of actual injury to the D
reputation and professional status of any employee who might be fcund to have committed wrongful acts involving leak rate testing.
Memorandum and Order, Docket No. LRp, at 2, 11 (March 26, 1986); Tr. 45.
The same due process safeguards that the Supreme Court required in Roth and in Ruffalo must be applied here.
These two cases, as well as those discussed supra, all point to one result:
where the sanction may be deprivation of one's right to earn a livelihood, due process concerns make clear and convincing evidence the only proper quantum of proof.
9 D
O The procedural restrictions of this proceeding also 1
l call for the imposition of a higher standard of proof.
The UD' l
Numerous Employees have been deprived of discovery, I
l cross-examination, and the right to call witnesses on their own l
l behalf.
While such restrictions are typical of legislative 4
hearings, if the legislative hearing may ultimately result in loss of one's license, reputation, or livelihood, the hearing must comport with the requirements of due process articulated V
by Ruffalo and Roth and their progeny.
The clear and convincing evidence standard functions as a counterweight to those procedural constraints.
II.
NEITHER THE NUMEROUS EMPLOYEES, NOR ANY OTHER PARTICIPANTS, BEAR A BURDEN OF PROOF IN THIS PROCEEDING.
II Having demonstrated what the proper quantum of proof should be, it is appropriate to note that no one bears the burden of proof in this legislative proceeding.
10 Wilen the Commission exempted this inquiry from 10 C.F.R. Part 2, Subpart G, it made inapplicable the rule that "the proponent of an order has the burden of proof."
10 C.F.R.
O
$ 2.732.
The Commission granted only the Board, not the parties, the right to call witnesses and examine them.
22 N.R.C.
at 882.
The only reasonable inference of this decision e
is that the Commission does not expect or require the several O 4 l
1
)
participants to this proceeding to produce evidence to support their respective contentions.
It would be unprecedented to assert that the Numerous l
Employees, whose conduct is at issue, bear any burden of proof to demonstrate their lack of culpability.
See Consumers Power
)
Co., LBP-75-39, 2 N.R.C.
29, 45 (1975) ("In this country, accused of criminal or tortious conduct do not persons.
have the burden of proving a negative; i.e.,
that no misconduct
)
exists.")
In a similar vein, there cannot be any adverse inferences drawn from an Employee's failure or inability to bring forth evidence that he was not involved in leak rate test D
practices.
Nor do the other parties, the NRC Staff, or the authors of the investigative reports who testified herein, bear
)
any burden of proof.
First, these participants are' not the proponents of any order.
Second, the Commission merely directed Staff to provide the Board with testimony or other assistance at the Board's discretion, 22 N.R.C.
at 882, and the reports' authors were called as impartial witnesses to explain i
l their findings.
- See, e.g.,
Declaratory Order and Certification
)
of Questions to the Commission, Docket No. LRP, at 2-3 (May 30, 1986).
As for the Aamodts, the Board granted them leave to intervene because the Board determined that they had an interest that might be affected and, more significantly, that I l
)
"they will likely contribute to the development of an adequate record."
22 N.R.C.
at 882; see Memorandum and Order, Docket
}
No. LRP, at 2-4 (March 26, 1986).
These criteria for intervention, and the Board's finding thereon, do not lead to the conclusion that the Aamodts bear any burden of proof.
In
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this sui generis legislative proceeding, where no party had any rights of discovery and cross-examination, there simply is no burden of proof for any party to bear.
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III. THE COMMISSION INTENDED " DERELICTION OR CULPABLE NEGLECT" TO DENOTE MORE THAN MERE NEGLIGENCE.
The Commission directed the Board to issue recommended
)
findings " identifying those individuals who participated in, or knew of and condoned, or by their dereliction or culpable neglect allowed the leak rate falsifications at TMI-2."
22 N.R.C.
at 881 (emphasis supplied).
The Employees submit that the Commission intended " dereliction or culpable neglect" to mean the type of conduct usually associated with wilful or wanton misconduct or criminal conduct requiring scienter.
This conclusion as to the Commission's meaning is buttressed by a case recently decided by the U.S. Court of Appeals for the Third Circuit--the controlling jurisdiction for TMI-2 civil and criminal litigation.
In Hritz v. Woma Corp.,
732 F.2d 1178 (3d Cir. 1984), the Third Circuit construed the phrase " culpable conduct."
The Numerous Employees submit that this case sheds helpful light on the Commission's very similar
)
~10-J
e phrase " culpable neglect," and thereby provides the Board with a working definition of culpability to use in reaching its findings.
In Hritz, the Third Circuit held that its standard for
" culpable conduct" is " willfulness" or " bad faith."
732 F.2d D
at 1182.
It continued:
" Appropriate application of the culpable conduct standard requires that as a threshold matter more than mere negligence WB be demonstrated.
Certainly ' willfulness' and ' bad faith' include acts intentionally designed to avoid compliance with court notices.
. Reckless disregard.
. can (also] satisfy the culpable conduct standard."
3 Id. at 1183 (emphasis supplied).
See also Feliciano v.
Reliant Tooling Co.,
691 F.2d 653, 657 (3d Cir. 1982) (a defendant is culpable when it acts willfully or in bad faith.)
The Commission's use of " dereliction or culpable neglect" in the context of these cases must be construed by the Board as meaning wilful and wanton or reckless behavior.
IV.
THE POLICIES OF THE LACHES DOCTRINE AND OF STATUTES OF LIMITATIONS ARE APPLICABLE HERE.
BECAUSE OF THE PASSAGE OF TIME, AMBIGUITIES OR GAPS IN THE RECORD SHOULD BE RESOLVED IN FAVOR OF
-s
'J THE EMPLOYEES.
In its Order setting the case for hearing, the Commission noted:
O "Because the leak rate falsification events to be addressed in this Board hearing are more than five years old, the five-year statute of limitations set forth in 28 U.S.C.
S 2462 may bar O @
3 the NRC from subsequently instituting an enforcement proceeding for involvement in the events that are the subject of this hearing."
)
22 N.R.C.
at 884 n.3.
The Employees submit that the due process-based policies underlying statutes of limitations, and the related doctrine of laches, apply here, even if a statute D
of limitations itself does not.
These policies require, at a minimum, that ambiguities or gaps in the record be resolved in favor of the Employees.
J Statutes of limitations serve a general purpose of repose, the interest of both a defendant and society in freedom from stale claims.
Thay function to give defendants due notice D
of claims and accusations against them so that they may preserve evidence.
- See, e.g.,
Bartlett v. Miller & Schroeder Municipals, Inc., 355 N.W.2d 435, 439-40 (Minn. App. 1984).
O The Supreme Court has recently explained:
" Statutes of limitations are not simply technicalities.
On the contrary, they have long been respected as fundamental to a well-ordered
]
judicial system.
The process
. which results in the findings of ultimate facts for or against the plaintiff by the judge or jury is obviously more reliable if the witness or testimony in question is relatively fresh.
Thus in the judgment of most legislatures and courts, D
there comes a point at which the delay of a plaintiff in asserting a claim is sufficiently likely either to impair the accuracy of the fact-finding process or to upset settled expectations that a substantive claim will be barred without respect to whether it is O
meritorious."
Board of Regents v.
Tomanio, 446 U.S.
478, 487 (1980).
3 S
O This passage indicates that statutes of limitations are designed, in part, to protect parties from the dangers 3
created by fading memories.
The need to ensure that witnesses give reliable testimony has been a core theme in the understanding and application of statutes of limitations.
The 3
Court has consistently emphasized that statutes of limitations are
" designed to promote justice by preventing
~3 surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared."
Order of Railroad Telegraphers v.
REA, 321 U.S.
342, 348-49 0
(1944), cited in American Pipe and Construction Co.
v.
- Utah, 414 U.S.
538, 554 (1974) (emphasis supplied).
The policies underlying the equitable doctrine of O
laches are materially similar to those that inform statutes of limitations.
Laches is designed to avoid the prejudice that can result from the prosecution of stale claims.
Goodman v.
O McDonnell Douglas Corp., 606 F.2d 800, 805 (8th Cir. 1979),
cert. denied, 446 U.S. 913 (1980).
One type of prejudice that supports the application of laches to bar a claim is the loss O
of evidence that would support the defendant's position.
606 F.2d at 808.
The concerns underlying both laches and statutes of O
limitations are present in this proceeding, and compel the Board to acknowledge that the passage of time has led to fading C e
s
(
memories, lost evidence, and gaps and ambiguities in the f
record.
The numerous leak rate tests at issue herein were k
L' perforn.ed eight or nine years ago.
The tests were routine tasks, typically performed at least once every eight-hour shift.
Stier Report, Vol.
I,
- p. 51.
The Numerous Employees, O~
understandably, cannot recall performing any specific leak rate test, or the conditions that prevailed in the reactor plant during each test.
Id. at p.
8; see Tr. 1650, 2452, 2459, J
2523-24, 2632.
Where laches or a statute of limitations would normally function to bar a claim, here their underlying policies should operate to prevent prejudice to the Numerous G
Employees from the inevitable fading of their memories and loss of evidence regarding events that occurred so long ago.
Equity demands that the Board account for the passage of time and the G
resulting prejudice to the Numerous Employees by resolving gaps or ambiguities in the record in the Numerous Employees' favor.
WP V.
MET ED ADMINISTRATIVE PROCEDURES WERE NOT LEGAL REQUIREMENTS IMPOSED ON MET ED OR THE EMPLOYEES, AND VIOLATIONS THEREOF ARE NOT VIOLATIONS OF LAW.
The Atomic Energy Act sets forth the statutory 3
authority that the Commission had to issue licenses to Metropolitan Edison (" Met Ed") and the TMI-2 operators and supervisors in 1977-79.
42 U.S.C. S 2232(a) requires that 4D applicants for facility licenses have such technical specifications as are necessary to assure the public health and O 4 J
S safety, and provides that such technical specifications shall be part of any license issued by the Commission.
See also 42 D
U.S.C. S 2133.
Section 2236 provides that a facility must be operated in accordance with its technical specifications, and that a license may be revoked for violations thereof.
D Section 2137 provides that the Commission shall determine the qualifications for licensed operators and suspend licenses for violations thereof.
D Taken together, these provisions of the Atomic Energy Act define the legal obligations of Met Ed and the licensed operators (including senior reactor operators) at TMI-2 D
pertinent to the leak rate tests at issue herein.
The statute makes clear that the central requirement imposed on Met Ed and the TMI-2 operators was to comply with their licenses, which D
incorporated the Technical Specifications for TMI-2 and the Commission's regulations.
Conspicuous by its absence is any reference whatsoever in the Act to administrative procedures.
Met Ed's Administrative procedures are not part of the facility or operator licenses, NRC regulations, or the TMI-2 Technical Specifications.
Therefore, even if the Numerous Employees failed to comply with Met Ed's Administrative Procedures, those failures are not violations of the law punishable by the NRC.
Met Ed was issued its TMI-2 facility license subject to compliance with the TMI-2 Technical Specifications, which the NRC scrutinized.
Stier Report, Vol.
I, p.
36.
Thus, Met 9 O
J Ed had a duty to comply with the TMI-2 Technical Specifications concerning RCS leakage, including the 1 gpm LCO for D
unidentified leakage, and the surveillance requirement for performance of a leak rate test "at least once per 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> during steady state operation."
Stier Report, Vol. V(B), Tab D
14.
Administrative procedures are not, expressly or implicitly, part of the TMI-Technical Specifications, the facility license held by Met Ed, or the operator licenses held D
by the Employees.
Tr. 1166-68, 1176-77; Exhibits 10-A, 10-B.
The only possible reference to " administrative procedures" in the Technical Specifications is in Section 6.8.1, which provided:
"6.8.1 Written procedures shall be established, implemented and maintained coveting the activities referenced below:
O
- a. The applicable procedures recommended in Appendix
'A' of Regulatory Guide 1.33, November, 1972."
There is no " Regulatory Guide 1.33, November, 1972."
D See Tr. 1174.
The intended reference is to Safety Guide 33, issued by the Atomic Energy Commission on November 3, 1972.1' Safety Guide 33, Appendix A states that:
"The following are typical safety-related activities which should be covered by written procedures.
This appendix is not intended as an D
3/
Regulatory Guide 1.33, Revision 2 was issued by the NRC in February 1978.
Apparently Met Ed (in 1978-79) and Mr.
Russell (in 1986) were not aware of the republication of Safety Guide 33.
D 6
4 l
i inclusive listing of all needed procedures since l
many other activities that are carried out during the operation phase of nuclear power plants should be covered by procedures that are not GD included in this list.
A.
Administrative Procedures O
4.
Procedure Adherence and Temporary Change Method 5.
Procedure Review and Approval 6.
Schedule for Surveillance Tests and Calibration 7.
Shift and Relief Turnover 4E 8.
Log Entries and Record Retention These documents make clear that Staff's assertion that Met Ed's Administrative Procedures were part of the legal q,
requirements imposed on the licensed operators, Tr. 1166-69, is specious.
g TMI-2 Technical Specification 6.8.la only requires that the " procedures recommended in Appendix A of Regulatory Guide 1.33, November 1972" "be established, implemented and q,
maintained."
It does not require Met Ed to adhere to the procedures, much less identify any specific requirements to be followed.
Safety Guide 33-in turn merely states that certain O
safety-related activities "should be covered by written procedures."
It gives the operators not a clue as to what they were required to do.
Mr. Russell himself conceded as much:
O "All (the operator] would get out of reading Reg.
Guide 1.33 or, in this case, Safety Guide 33, would be that there must be a procedure entitled, for instance, ' Shift Relief and Turnover.' It would give him no substance as to what he is 4 %
)
required to do as a part of shift relief and turnover."
Tr. 1176-77.
When asked whether the TMI-2 facility license explicitly referred to Met Ed's Administrative Procedures so that an operator could understand that the procedures were part
)
of the facility license, Mr. Russell responded:
"[Iln general, the facility license itself references the regulations in effect and the
)
regulations at 50.36 require administrative procedures.
The license, however, does not reference, on the technical specifications, specific administrative procedures of the facility.
It only requires that they exist.
The numbering, for example, would not be in
- y the license or the technical specifications."
Tr. 1177.
Mr. Russell further stated that NRC Regulatory Guides 3
are intended for the licensing employees of facility license holders, not for plant operators and supervisors.
Tr. 1178-79.
It is unlikely that the operators ever even saw Safety Guide
]
33.
In any event, it is impossible to conclude that they could have known what was required of them or could have been aware that the fleeting, unclear reference to " written procedures" in 3
Technical Specification 6.8.1 made Met Ed's Administrative Procedures legally binding on them.
Before a person can be deemed to have violated a law, 3
it must be clear what the law is and what compliance with it entails.
If not, the law may be void for vagueness.
- See, J )
3 e.g.,
Papachristou v.
City of Jacksonville, 405 U.S.
156 (1972); Grayned v.
City of Rockford, 408 U.S. 104 (1972).
The
)
" vagueness doctrine" functions to provide individuals with procedural due process considerations of fair notice and adequate warning.
Smith v.
Goguen, 415 U.S.
566, 572 (1974).
)
It is not limited to penal statutes drafted by legislatures.
It applies equally to regulations promulgated by an agency.
- See, e.g.,
M.
Kraus & Bros.
v.
United States, 327 U.S.
614, 621 (1946);
United States v.
Beam, 686 F.2d 252 (5th Cir. 1982).
The application of this doctrine in the situation here is cicar.
3 In Smith, the Supreme Court noted that vagueness doctrine demands
" reasonably clear guidelines for law enforcement 3
officials and triers of fact in order to prevent
' arbitrary and discriminatory enforcement.'"
415 U.S. at 572-73 (footnote omitted).
The key policy behind the vagueness doctrine is the due process concern of preventing D
traps for the unwary:
"No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.
All are entitled to be informed
[)
as to what the State commands or forbids."
Lanzetta v.
New Jersey, 306 U.S.
451, 453 (1939) (footnote omitted).
3 Mr. Russell's testimony illustrates the NRC's failure to inform the Numerous Employees adequately whether or not D <
7 D
TMI-2 Administrative Procedures were legal requirementss The confusion unintentionally created by the NRC renders invalid any argument that the Numerous Employees violated their licenses, NRC regulations, or the TMI-2 Technical Specifications by violating Met Ed's Administrative Procedures.
D Such a finding would be an impermissible infringement on the Employees' due process rights.
As the Supreme Court has steadfastly maintained:
J
"[A] statute which either forbids or requires that doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of
}
law."
Connally v. General Construction Co.,
269 U.S. 385, 391 (1926)
(citations omitted).
D VI.
THE TMI-2 TECHNICAL SPECIFICATIONS DO NOT REQUIRE A SATISFACTORY LEAK RATE TEST RESULT MEASURING UNIDENTIFIED LEAKAGE.
Before the Board can make a recommended Decision about J
1eak rate tests at TMI-2, it must appreciate that the TMI-2 Technical Specifications do not require that satisfactory leak rate test results measuring unidentified leakage be obtained.
The TMI-2 Technical Specifications contain only one reference to the leak rate test:
Section 4.4.6.2, which requires " performance of a Reactor Coolant System water inventory balance at least once per 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> during steady state operation."
Section 4.4.6.2(d)s There is no direct connection in the TMI-2 Technical 3
D Specifications between leak rate test results and the unidentified leakage limit of 1 gpm contained in Section 3.4.6.2.
On the contrary, Section 4.4.6.2 sets forth four possible surveillance methods, specifically including "[m]onitoring the containment sump inventory and discharge at least once per 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />," by which the five leakage limits of Section 3.4.6.2 may be satisfied.
In accordance with the Regulatory Guide 1.45 (which D
served as the basis for the relevant TMI-2 Technical Specifications), Section 3.4.6.1 of the TMI-2 Technical Specifications only requires that three leakage detection systems 3
be operational in order for the plant to remain in operation.
Those three include the " containment sump level monitoring system" but specifically do not include satisfactory leak rate D
test results.
Because Regulatory Guide 1.45 and the Standard Review Plan mandate the sump monitoring method as the primary means of measuring unidentified leakage for purposes of a 1 gpm LCO, the TMI-2 Technical Specifications cannot be read as requiring that a satisfactory leak rate test result was necessary.
A.
The TMI-2 Technical Specifications Did Not Require Corrective Action by Management Personnel.
3 Section 3.4.6.2(b) of the TMI-2 Technical Specification requires management personnel to enter into the 9 k
)
Action Statement whenever unidentified leakage exceeds allowable limits.
However, Section 3.4.6.2(b) is completely
)
silent on satisfactory leak rate test results and on whether it is necessary to take any action based on the results of a leak rate test.
Section 3.4.6.2(b) applies when leakage is greater
)
than the specified limits, not when a leak rate test shows unidentified leakage greater than 1 gpm.
Any alleged failure to enter into an Action Statement based on the leak rate test O
results at issue herein is of no legal significance.
If the operators ran a leak rate test to comply with Technical Specification 4.4.6.2(d) and the result indicated O-unidentified leakage greater than 1 gpm, they were not necessarily obligated to enter the Action Statement.
If other methods of leak detection indicated compliance with the O
requirements of Technical Specification 3.4.6.2, the Action Statement did not apply, regardless of the leak rate test results.
O B.
The Operators Met All Relevant NRC Requirements Regarding Retention of Leak Rate Tests.
O Allegations that leak rate tests were discarded in violation of Technical Specifications are based on a miscomprehension of the duties and obligations of TMI-2 O
personnel operating a nuclear reactor licensed under 10 C.F.R. Part 50.
8 I
O 10 C.F.R.
S 50.71, entitled " Maintenance of Records, Making of Reports," sets forth general guidelines for
()
maintaining records and filing reports.
Nothing in 10 C.F.R S 50.71 or in Technical Specification 6.10, entitled " Record Retention," requires the retention of every leak rate test result.
)
Section 50.71 only requires retention of "[r]ecords which are required by the regulations in this part, by license condition, or by technical specifications.
Technical Specification 6.10.l(d) only requires the retention for five years of records of surveillance activities required by TMI-2 Technical Specifications.
The operators complied with the regulation and O
the Technical Specifications because the Surveillance Requirement contained in Section 4.4.6.2 of the TMI-2 Technical Specifications only required that a leak rate be performed at least once every O
72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />, and records demonstrating compliance with this requirement were retained.
D D
D D S
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l O
Therefore, there are no issues concerning violations of TMI-2 Technical Specifications for the Board to address.
O Respectfully submitted, g
Of Counsel:
LeBOEUF, LAMB, LEIBY & MacRAE MICHAEL F.
McBRIDE By dA/b/
ge ROBERT ST. JOHN ROPER (J Partner 8 MOLLY S.
BOAST 1333 New Hampshire Ave.,
N.W.
JAMES W. MOELLER Suite 1100 MARLENE L.
STEIN Washington, DC 20036 C. CHRISTOPHER SPRAGUE (202) 457-7500 8
SMITH B. GEPHART KILLIAN & GEPHART JANE G.
PENNY 216-18 Pine Street
[},'
TERRENCE G. McGOWAN Harrisburg, PA 17108 (717) 232-1851 January 23, 1987 Attorneys for the Numerous Employees O
O O
O D l
UNITED STATES OF AMERICA n.,, n.,
NUCLEAR REGULATORY COMMISSION ""ll;."'
BEFORE THE PRESIDING BOARD 07 JAN 23 P4 :26 CFib DOCH
)
~ th In the Matter of
)
)
INQUIRY INTO THREE MILE ISLAND
)
Docket No. LRP UNIT 2 LEAK RATE DATA
)
FALSIFICATION
)
)
CERTIFICATE OF SERVICE I hereby certify that I have served, this 23rd day of January, 1987, copies of " Proposed Findings of Fact and Conclusions of Law of the Numerous Employees" and " Memorandum of Law of the Numerous Employees" by hand delivery, or, as indicated by an asterisk, by deposit in the United States mail, first class, postage prepaid:
Administrative Judge James L. Kelley, Chairman (2)
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 Regdlatory Commission Washington, D.C.
20555 Administrative Judge James H. Carpenter Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
s f
Mary E. Wagner, Esq.
Office of the General Counsel 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 2300 N Street, N.W.
Washington, D.C.
20037
- James B. Burns, Esq.
Isham, Lincoln & Beale Three First National Plaza Suite 5200 Chicago, IL 60602 d
- Michael W. Maupin, Esq.
Hunton & Williams P.O. Box 1535 Richmond, VA 23212
- Ms. Marjorie M. Aamodt P.O. Box 652 Lake Placid, NY 12946 G.... > v_wA_oo o. _ h Jam () W. Moeller \\
,.. _.,