ML20211A935
| ML20211A935 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 02/16/1987 |
| From: | Voigt H GENERAL PUBLIC UTILITIES CORP., LEBOEUF, LAMB, LEIBY & MACRAE |
| To: | |
| Shared Package | |
| ML20211A553 | List: |
| References | |
| LRP, NUDOCS 8702190265 | |
| Download: ML20211A935 (128) | |
Text
{{#Wiki_filter:, L I UNITED STATES OF AMERICA DOCKETED' NUCLEAR REGULATORY COMMISSION L'9IRC BEFORE THE PRESIDING' BOARD 7 F0917 P2:10 CFF; : 00Cr:' ,
)
In the Matter of )
)
INQUIRY INTO THREE MILE ) Docket No. LRP ISLAND UNIT 2 LEAK RATE ) DATA FALSIFICATION )
)
COMMENTS OF THE NUMEROUS EMPLOYEES IN RESPONSE TO THE BOARD'S FEBRUARY 2, 1987 REQUEST AND ORDER The Numerous Employees hereby submit comments in response to the Board's six questions in its February 2, 1987 Request and Order. Question 1: "Whether violation of Met Ed procedural requirements relating to leak rates may form the basis for punitive action by the NRC against an employee." Answer: No. See 4T 162-70 of the Numerous Employees' Proposed Findings; see also Memorandum of Law of the Numerous Employees, Point V. Question 2: " Assuming that the answer to question 1 is negative, whether this Board should l nevertheless make findings in this legislative inquiry concerning violations of relevant Met Ed administrative procedures because, in fact if not I in law, such violations are relevant to the ! issues posed to us and because the Commission should be informed of significant gaps in the existing regulatory scheme." 8702190265 870216 PDR ADOCK 05000320 0 PDR
l Answer: Assuming that the Board believes.itself obliged to make findings on violations of Met Ed Administrative Procedures, the Numerous Employees have proposed responsive findings for the appropriate-individuals. The Board could adopt those factual findings and the legal conclusion that any. violations that occurred are beyond the Commission's reach. In the alternative, the Board could make general-findings about Administrative procedures (with appropriate exceptions), and, in that fashion, inform the Commission of possible "significant gaps in the regulatory scheme." However, the Numerous Employees submit that the decision of the Commission not to convert Administrative procedures into legal requirements does not result in "significant gaps in the existing regulatory scheme". The reason for this is because the Commission properly concerns itself with limitations on reactor operations, while leaving it to licensees to establish administrative procedures concerning such things as paperwork to accomplish the i licensee's objectives. It is simply not necessary for the Commission to regulate every facet of the nuclear industry to satisfy statutory objectives. See proposed policy Statement on Technical Specification Improvements for i
- Nuclear power Reactors, 52 Fed. Reg. 3788, 3789, col. 2 to 3790, col. 1 (Feb. 6, 1987).
1 I
We would also point out that any change in a licensee's technical specifications requires a formal application to amend the license, publication of notice and an opportunity for hearing, processing by the-Commission's Staff, preparation of an SER, and issuance of a license amendment. The more licensee procedures are incorporated in technical specifications, the more frequently license amendments will be required. For example, if a technical specification requires compliance with "AP 1010, Shift Relief and Turnover, Nov. 1986", and the procedure is revised, a license amendment would be required. The Commission has clearly stated that it does not want to get into such a quagmire. See id. at 3789, cols. 1-2; see also 52 Fed. Reg. 3822, 3823, col. 1 (Feb. 6, 1987). Question 3: "Whether the distinction at page 17 between procedures being ' established, implemented and maintained' versus their being
' adhered to' is sound."
Answer: Yes. The distinction is sound because 10 C.F.R. S 50.36(c)(5) requires technical specifications to include administrative controls, but does not require the I inclusion of administrative procedures. The adoption of , l certain administrative procedures is recommended by Regulatory
- Guide 1.33, which of course is not a legal requirement. Thus, j 1
the Commission gave guidance to licenseos to have l i
administrative procedures, but did not purport to regulate their content or to enforce compliance with them. As Mr. Haverkamp testified, his job was "to see whether or not there were violations of tech specs" (Tr. 2048), not to review for compliance with Administrative Procedure requirements for such things as logkeeping. Tr. 2048-49. Question 4: "Whether it is correct that the TMI-2 Tech Specs do not require satisfactory leak rate test results measuring unidentified leakage as a condition of continued operation. In that connection, discuss whether any of the other three surveillance methods listed in Section 4.4.6.2 could demonstrate compliance with the 1 gpm limit on unidentified leakage as it is defined in the TMI-2 Tech Specs (not as the subject of leakage and surveillance is more-generally discussed in Reg. Guide 1.45). See Employee Memorandum, pp. 21-22." Answer: The TMI-2 Technical Specifications did not require a satisfactory leak rate test result as a condition of continued operation. See 11 135, 150 of the Numerous Employees' Proposed Findings; Memorandum of Law of the Numerous Employees, point VI; see also pp. 20-30 of " Defendant's Memorandum of Law in Support of its Motion to Dismiss the Indictment", filed in United States v. Metropolitan Edison Company, Crim, No. 83-00188 (M.D. Pa.) on or about December-19, 1983, and attached hereto as Attachment A. The answer to the latter part of Question 4 requires the resolution of a conflict in the TMI-2 Technical Specifications. The definition of unidentified leakage in
Section 1.15 includes intersystem leakage, without explicitly referring to it. Applied literally, that definition would preclude reliance on any surveillance method other than the leak rate test. Tr. 406-08 (Stier); Tr. 410 (Moore). As Mr. Russell explained it, the leak rate test really included two 1 gpm limits, one for unidentified leakage and the other for intersystem leakage. Tr. 443-44. The Section 1.15 definition does not agree with the definition of unidentified leakage in Reg. Guide 1.45, which was incorporated into the TMI-2 Technical Specifications in the " Bases" for Sections 3/4.4.6.1. Given that conflict, we do not believe the literal reading of Section 1.15 is compelled. See Tr. 408, 513-17 (conflict a source of significant confusion). Instead, we submit that Section 4.4.6.2.b of the TMI-2 Technical Specifications (" Monitoring the containment sump inventory and discharge at least once per 12 hours") was intended as another method to determine the amount of l unidentified leakage and that use of reactor building sump data "could demonstrate compliance with the 1 gpm-limit on unidentified leakage as it is defined in the TMI-2 Tech Specs". As a technical matter, Faegre & Benson and MpR Associates used sump data, long after the fact, to so demonstrate. See Faegre & Benson Report, Vol. One, pp. 30-36; Stier Report, Vol. IV(A), Section IV, especially pp. IV.1-ll, IV.32-34. The water collected in the sump more closely approximated the amount of unidentified leakage at
TMI-2 than the leak rate test. See Stier Report, Vol. IV(B), Appendix B, pp. B.1-5; Vol. IV(A), Section IV, p. IV.2-3 (sump collection upper limit on RCS unidentified leakage). MpR believed that the RB sump data was "the best available source of information on the actual leakage at TMI-2 which could have been through the reactor coolant pressure boundary." Id., Vol. IV(A), Section IV, p. IV.2. Question 5: "Whether it is correct that entry into the action statement was not necessarily required when a leak rate test showed unidentified leakage in excess of 1 gpm and there was no clear basis for invalidating that test -- e.g. because of an obvious operator error. The basis for this proposition by the Employees appears to be that one of the other surveillance methods might show compliance with the 1 gpm limit. Memorandum,.p. 22. Do you agree?" Answer: Entry into the Action Statement was not required unless unidentified leakage exceeded 1 gpm. Validity of the test is not the key, because the LCO was a limit on leakage, not a limit on test results. The record shows that unidentified leakage did not, in fact, exceed 1 gpm except during a brief period between October 16-18, 1978, the period that gave rise to LER 78-62/lT. See TT 225-36 of the Numerous Employees' proposed Findings. Therefore, there was no period l of time other than that brief period in October 1978 in which ' entry into the Action Statement was required. Question 6: "Whether the last sentence of the Employees' Memorandum on page 23 is consistent with regulatory requirements. On the record of this proceeding, this sentence appears l l f i 4 c _
to the Board to suggest that an employee may certify as accurate and retain records he has reasons to believe are not accurate (i.e., any. leak rate test result under 1 gpm) while systematically discarding records he.has no better reason to believe are accurate (i.e., any leak rate test over 1 gpm)." Answer: The Board's understanding of the position of the Numerous Employees is incorrect. The position of Numerous Employees is simply that Technical Specification 4.4.6.2.d requires "[p]erformance of a [ leak rate test] at least once per 72 hours during steady state operation"; that requirement was satisfied. See Stier Report, Vol. III(A), Table 1; see also Answer to Question 4. Technical Specification 4.4.6.2.d does not address the " accuracy" or " validity" of the leak rate test, but rather simply its performance. Additional leak rate tests performed more frequently than once every 72 hours were,.as a matter of law, " superfluous", as Metropolitan Edison Company correctly argued in support of its Motion to Dismiss. See Attachment A, pp. 83-84. The predicate for Question 6 is also not completely consistent with the record. Typically, TMI-2 operators and supervisors believed that unidentified leakage was below 1 gpm. See 1 328-29, 334, 337 of the Numerous Employees' proposed Findings. Retention of leak rate tests depicting less than 1 gpm of unidentified leakage was appropriate, given this belief. Therefore, it is incorrect to suggest that any TMI-2 operator or supervisor typically " retain [ed]
records that he [had] reason to believe [were] not' accurate" when he retained leak rate tests under 1 gpm. Furthermore,
'it is understandable that operators and supervisors discarded leak rate tests depicting unidentified leakage over 1 gpm because of their perception, which the technical witnesses have confirmed, that unidentified leakage was not in excess of-1 gpm. See 11 225-36, 337 of the. Numerous Employees' Proposed Findings.
Respectfully submitted,- Of Counsel: LeBOEUF, LAMB, LEIBY &,MacRAE By haNuj $. NKS MICHAEL F. McBRIDE (J Partner j ROBERT ST. JOHN ROPER MOLLY S. BOAST 1333 New Hampshire Avenue, N.W. JAMES W. MOELLER Suite 1100 MARLENE L. STEIN Washington, DC 20036 C. CHRISTOPHER SPRAGUE (202) 457-7500 SMITH B. GEPHART KILLIAN & GEPHART JANE G. PENNY 216-18 Pine Street TERRENCE G. McGOWAN Harrisburg, PA 17108 (717) 232-1851 Attorneys for the Numerous Employees February 16, 1987 i i
ATTACHMENT A UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
------------------x UNITED STATES OF AMERICA, :
Plaintiff, :
- v. : Criminal No. 83-00188 ;
METROPOLITAN EDISON COMPANY, : Defendant. :
------------------x DEFENDANT'S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS THE INDICTMENT t
l KAYE, SCHOLER, FIERMAN, HAYS & 1 HANDLER 425 Park Avenue New York, New York 10022 (212) 407-8000 SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W. Washington, D.C. 20036 (202) 822-1000 l RHOADS, SINON & HENDERSHOT 410 North Third Street Post Office Box 1146 Harrisburg, Pennsylvania 17109 (717) 233-5731 Attorneys for Defendant Metropolitan Edison Company-
T?blo of Centents Page Preliminary Statement.............................. 1 Statement of the Case.............................. 2 A. System Description........................ 3 B. Detection and Measurement of Reactor Coolant System Leakage............ 4 C. Provisions of TMI-2 Technical Specifications Relative to Detection and Measurement of Unidentified Leakage................................... 8 D. The Sump Method for Monitoring Leakage................................... 12 E. The Reactor Coolant System Water ! Inventory Balance ("RCIB") Test........... 14 l F. The Indictment............................ 15 Summary of Argument................................ 17
- Argument........................................... 20 i
I. THE INDICTMENT RESTS ON A MISINTERPRETA-TION OF THE RELEVANT PROVISIONS OF TMI-2's l TECHNICAL SPECIFICATIONS AND NRC REGULATIONS.. 20 . A. Counts 1, 3, 5, 6 and 8, which Allege I License Violations, Rely on TMI-2 l Technical Specifications which Do Not l Require an RCIB Procedure in Connection With Unidentified Leakage................. 21 l B. NRC Regulations Do Not Require an RCIB Procedure in Connection With Unidentified Leakage...................... 27 L C. Count 11 Fails to State an Offense........ 30 II. THE LICENSE PROVISIONS AND REGULATIONS CITED IN THE INDICTMENT CANNOT GIVE RISE TO CRIMINAL LIABLILITY DUE TO VAGUENESS....... 35 Counts 1-4................................ 37 i
Pace Counts 5 cnd 8............................ 39 Counts 6, 7, 9 and 10..................... 44 Count 11.................................. 50-III. THE INDICTMENT MUST BE DISMISSED FOR FAILURE TO ALLEGE THE NECESSARY ELEMENT OF WILLFULNESS................................- 50 A. Counts 1 and 2............................ 50 l B. Counts 3 and 4............................ 58 C. Counts 5 and 8............................ 60
; D. Counts 6, 7, 9, and 10.................... 61 i
) E. Count 11.................................. 62 IV. THE INDICTMENT IS INSUFFICIENT FOR FAILURE TO ALLEGE ADEQUATELY THE OFFENSES CHARGED..... 64 A. An Indictment Must Allege All Essential Elements and Facts of the Offense, Provide Protection
; Against Double Jeopardy, And Assure The Accused of His Right to the I Intervention of a Grand Jury.............. 64 I
B. A Bill of Particulars Cannot Cure the Deficiencies in this Indictment....... 71 C. The Indictment Fails to Adequately Allege the Facts and Elements of the Offense Charged....................... 73 i Counts 1 and 2...................... 73 Counts 3 and 4...................... 79 l l Counts 5 and 8...................... 81 l 1 Counts 6 and 7...................... 83 Count 9............................. 84 Count 10............................ 85 Count 11............................ 86 l ii
Paq7 V. SECTIONS 2131 AND 2272 OF TITLE 42 DO NOT APPLY TO THE PURPORTED LICENSE VIOLATIONS ALLEGED IN THE INDICTMENT..................... 88 A. The Legislative History of the Act Establishes that Sections 2131 and 2272 Were Not Intended to Apply to License Violations................................ . 88
- B. The Government's Interpretation of
! Section 2272 Undercuts the Intention of Congress in Establishing Less Severe Sanctions for the Violation of Commis-i sion Regulations Under Section 2273....... 92 C. The Government's Interpretation of Sec-
! tion 2272 Is Contrary to the Authorita-tive Interpretation by the NRC............ 94 J D. Sections 2131 and 2272 Cannot Apply to the License Violations Alleged in the Indictment......................... 96 , E. Congress Made Clear in other Sections i of the Act When It Intended to Impose l Sanctions for License Violations.......... 98 F. The License Violations Alleged in the . Indictment Cannot Be Prosecuted Under ' Sections 2131 and 2272 on Grounds of-Vagu'eness................................. 99 . I VI. SEPARATE COUNTS OF THE INDICTMENT ALLEGING THAT THE SAME CONDUCT CONSTITUTED A VIOLA-TION BOTH OF THE COMPANY'S LICENSE AND'OF NRC REGULATIONS ARE MULTIPLICITOUS............ 101 CONCLUSION......................................... 107 i iii
TABLE OF AUTHORITIES Cases: Page: Bingham's Trust v. Commissioner, 325 U.S. 365 (1945)............................ 20 Blockburger v. United States, 284 U.S. 299 (1932)............................ 19, 101, 104 Bowles v. Seminole Rock Co., 325 U.S. 410 (1945)............................ 21 , Brady v. Maryland, 373 U.S. 83 (1963)............................. 22n, 25 Budd Co. v. OSHRC, 513 F.2d 201, 205 (3d Cir. 1975)............................. 21 4 Bykofksy v. Borough of Middletown, 401 F. Supp. 1242 (M.D. Pa. 1975), aff'd, 535 F.2d 1245 (3d Cir. 1976)............ 35 City of Burbank v. General Electric Co., 329 F.2d 825 (9th Cir. 1964)................... 98 Diamond Roofing Co. v. Occupational Safety and Health Review Commission, 528 F.2d 645 (5th Cir. 1976)................... 17, 20, 36, 37, 98 Diebold, Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1978).................. 37n Dunn v. United States, 442 U.S. 100 (1979)........ ................... 17, 20, 35, 39, 49 Ex Parte Bain, 121 U.S. 1 (1887).............................. 66 Federal Trade Commission v. Sun Oil Co., 371 U.S. 505 (1963)............................ 98 Gaibis v. Werner Continental, Inc., 565 F. Su 1538 (N.D. Ill. 1977)......................pp. .... 20 Goldy v. Beal, 429 F. Supp. 640 (M.D. Pa. 1976)............... 35 Grayned v. City of Rockford, 408 U.S. 104 (1972)............................ 35 iv
P"q1 International Society for Krishna , Consciousness, Inc. v. Rochford, 425 F. Su (N.D. Ill. 1977), ' aff'd in pp. 734 part, rev'd in part on other grounds, 555 F.2d 263 (7th Cir. 1978)................................ 20 Investment Company Institute-v. Camp, 401 U.S. 617 (1971)............................ 95 M. Kraus & Bros. v. United States, 327 U.S. 614 (1946)............................ 17, 35, 36, 38,-40, 44, 100 Lanzetta v. New Jersey, 306 U.S. 451 (1939)............................ 35 Longview Refining Co. v. Shore, 554 F.2d 1006 (Em. App.), cert. denied, 434 U.S. 836 (1977).................... 52 Marshall v. Anaconda Co., 596 F.2d 370 (9th Cir. 1979)................... 37n Marshall v. Western Union Telephone Co., 621 F.2d 1246 (3d. Cir. 1980).................. 98 McBoyle v. United States, 283 U.S. 25 (1931)............................. 35 i . National Resources Defense Council, Inc. 3
- v. Securities and Exchange Commission, t 606 F.2d 1031 (D.C. Cir. 1979)................. 95 Nelson v. United States,
- 406 F.2d 1136 (10th Cir. 1969)................. 54, 55 Rosen v. Public Service Electric and Gas Co.,
477 F.2d 90 (3d Cir. 1973)..................... 95 i Russell v. United States, 369 U.S. 749 (1962)............................ passim Screws v. United States, 325 U.S. 91 (1945)............................. 17, 50, 58, j 59 Standard Oil Company of Texas v. United States, 307 F.2d 120 (5th Cir. 1962)........... 56, 60, 61, 62 v
1 P'qq: i l Stirone v. United States, 361 U.S. 212 (1960)............................ 66 Udall v. Tallman, 380 U.S. 1 (1965).............................. 21, 95 Usery v. Kennecott CoDoer 577 F.2d 1113 (10th Cir. 1977 Corp.}................ 37n United States v. Abrams, 539 F. Supp. 378 (S.D.N.Y. 1982)............... 54, 68, 72, 74, 76 United States v. Acone, , 302 F. Supp. 125E (S.D.N.Y. 1969)............. 72, 74, 83 United States v. A&P Trucking Corp., 113 F. Supp. 549 (D.N.J. 1953)................. 36 United States v. Beam, 686 F.2d 252 (5tE Eir. 1982)................... 36, 49 United States v. Beard, 414 F.2d 1014 (3d Cir. 1969)................... 53 United States v. Bedore, 455 F.2d 1109 (9th Cir. 1972).................. 33 United States v. Beer 518 F.2d 168 (5tH Eir. 1975)................... 31, 33 United States v. Birrell, 266 F. Supp. 539 (S.D.N.Y. 1967).............. 105 United States v. Carter, 576 F.2d 1062 (3d Cir. 1978)................... 105 ) United States v. Cecil, 608 F.2d 1294 (9th Cir. 1979).................. 54, 66, 68, 71, 77 United States v. Clearfield, 358 F. Supp. 564 (E.D. Pa. 1973)............... 31 United States v. Cruikshank, 92 U.S. 542 (1876)............................. 76 United States v. Devine's Milk Laboratories, Inc., 179 F. Supp. 799 (D. Mass. 1960)......... 87 United States v. Dorey, 711 F.2d 125 (9th Cir. 1983)................... 34 1 vi l
l Pnq73 United States v. Elliott, 689 F.2d 178 (10th Cir. 1982)................. 56 I United States v. Fisher, 456 F.2d 1143 (10th Cir. 1972)................ 20, 49 United States v. Frade, 709 F.2d 1387 (11th Cir. 1983)................. 52 United States v. Gilliland, . l 312 U.S. 86 (1941)............................. 33 ! United States v. Goldstein, 502 F.2d 526 (3d Cir. 1974).................... 66 United States v. Harris, 217 F. Supp. 86 (M.D. Ga. 1962)................ 87 United States v. Harriss, , 347 U.S. 612 (1954)....,....................... 35 United States v. Hinkle, , 637 F.2d 1154 (7th Cir. 1981).................. 70, 77, 80, 81 United States v. Heinze, 361 F. Supp. 45 (D. Del. 1973)................. 86, 87 United States v. Irwin, 654 F.2d 671 (10th Cir. 1981), cert. denied, 455 U.S. 1016 (1982)............. 17,_ 33 United States v. Keith, 605 F.2d 462 (9th Cir. 1979)............................ 54, 70, 72 United States v. Knox Coal Co., l 347 F.2d 33 (3d Cir.), cert. ! denied, 382 U.S. 904 (1933T................... 57 l United States v. Manetti,
- 323 F. Supp. 683 (D. Del. 1971)........,....... 55n United States v. Manuszak, 234 F.2d 421 (3d Cir. 1956)........ .., ....... 70 United States v. Mazzio, 501 F. Sepp. 340 (E.D. Pa. 1980), i aff'd, 681 F.2d 810 (3d Cir. 1982)............. 102 United States v. Mongiello, 442 F. Supp. 835 (E.D. Pa. 1977)................... 52 l
l l vii t
/ !
s
, , - , -~ - , . . - ,, ., - - - ,
P7ent United States v. National Association of , Securities Dealers, Inc., l 422 U.S. 694, 719 (1975)....................... 95 i United States v. Pomponio,
- 429 U.S. 10 (1976)............................. 17, 51, 57, 58, 59 United States v. Pra ,
452 F. Supp. 78 M.D. Pa. 1978)............... 101, 104, l l 105 United States v. Provinzano, 50 F.R.D. 361 (E.D. Wis. 1970)................ 105 United States v. Rosenfield, 469 F.2d 598 (3d Cir. 1972), cert, denied, 411 U.S. 932 (1973).............. 18, 51, 60 United States v. Rust Communications Group, Inc., 425 F. Supp. 1029 (E.D. Va. 1976)........ 36 United States v. Schreiber, 449 F. Supp. 856 (W.D. Pa. 1978), aff'd, 559 F.2d 534 (3d Cir.), cert. denied, 444 U.S. 843 (1979).............. 62 United States v. Talkington, 589 F.2d 415 (9th Cir. 1978)................... 31 United States v. Thomas, 444 F.2d 919 (D.C. Cir. 1971).................. 68, 72 United States v. Thoreson, 281 F. Supp. 598 (N.D. Cal. 1967).............. 105 United States v. Tobon-Builes, 706 F.2d 1092 (llth Cir. 1983)................. 34 ! United States v. Tomasetta, 429 F.2d 978 (1st Cir. 1970)................... 66, 72, 74 United States v. Walker, 524 F. Supp. 1029 (E.D. Pa. 1981).............. 106 United States v. Weiler, 385 P.2d 63 (3d Cir. 1967)..................... 62 United States v. Williams, 478 F.2d 369 (4th Cir. 1973)................... 56 viii
1 1 I I l Page: Van Liew v. United States, 321 F.2d 664 (5th Cir. 1963)................... 68, 72, 73 Whalen v. United States, 445 U.S. 684 (1980)............................ 102 Statutes: Atomic Energy Act of 1954 42 U.S.C. S 2077.............................. 93 42 U.S.C. 5 2122.............................. 93 42 U.S.C. S 2131.............................. passim 42 U.S.C. 5 2201(o)........................... 93 42 U.S.C. 5 2231............................. 93 42 U.S.C. 5 2272.............................. passim 42 U.S.C. 5 2273.............................. passim i 42 U.S.C. 5 2282............................. 98 15 U.S.C. S 645(a)............................ 56 18 U.S.C. S 371.............................. 54 ; 18 U.S.C. S 1001.............................. passim : 1 18 U.S.C. S 3282............................. 77n i Reculations: 10 C.F.R. S 50.2(v)........................... Sn 10 C.F.R. S 50.36(a).......................... 8, 93 l 10 C.F.R. S 50.71............................ 28, 29, 45 10 C.F.R. S 50.110........................... 94 10 C.F.R., Part 50, Appendix A, Design Criterion 30........................ 4 10 C.F.R., Part 50, Appendix B................ passim ix 1 l 1 l i
P'q7 l l Congressional Reports: Senate Report No. 91-553, 91st Cong. 1st Sess., reorinted in (1969) U.S. Code Cong. & Ad. News 13U7.............................. 91 , Senate Report No. 1699, 83d Cong., 2d Sess., reprinted in (1954) U.S. Code Con & Ad. News 3456.77.....................g............ 89 Senate Report No. 2530, 84th Cong., 2d Sess., reorinted in (1956) U.S. Code Cong.
& Ad. News, 4426. 77........................ 88, 89-90, 91 102 Cong. Rec. 13225 (July 18, 1956)............. 91 Article:
Greenspun, Criminal-Intent Requirements and Defenses in Regulatory Prosecutions, 1982 Criminal Law Bulletin 293................... 53 X
,,.a
_ 2 4a.4_ J A _ :w =m .h- # v' -~ UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT 08' PENNSYLVANIA'
.---------------x UNITED STATES OF AMERICA, :
Plaintiff, :
- v. : Criminal No. 83-00188 METROPOLITAN EDISON COMPANY, :
Defendant. :
-__________________g DEFENDANT'S MEMORANDUM OF LAW
! IN SUPPORT OF ITS MOTION TO DISMISS Preliminary Statement This Memorandum of Law is submitted by defendant Met-repolitan Edison Company (" Met-Ed" or "the Company") in sup-port of its motion, pursuant to Fed. R. Cr. P. 12(b), to dis-l ! miss the indictment. As demonstrated below, each of the counts of the indictment fails to state an offense as a matter of law and, in addition, fails to adequately a.11ege the essen- ; tial facts and elements of the offense with which the defen-dant is charged, as required under Russell v. United States, 369 U.S. 749 (1962). Various counts of the indictment must also be dismissed because they are multiplicitous.- - l
Statement of the Case l The indictment (Exhibit A)1 charges that Met-Ed vio-lated unspecified provisions of its license to operate the Three Mile Island Unit 2 ("TMI-2") nuclear plant and that these license violations were criminal under Sections 101 and 222 of the Atomic Energy Act of 1954 ("the Act"), as amended, 42 U.S.C. 55 2131 and 2272. The indictment also charges that the same conduct which allegedly violated Met-Ed's license also violated unspecified portions of the regulations promul-gated under the Act by the Nuclear Regulatory Commission ("NRC"). Violation of these NRC regulations was purportedly criminal under Section 223 of the Act, 42-U.S.C. 5 2273. The final count of the indictment (Count 11) charges the Company l with a violation of 18 U.S.C. 5 1001. All eleven counts of the indictment rest on the' l false premise that the detection and measurement of "unidenti-fied leakage" from the " reactor coolant system" of the TMI-2 nuclear plant was required to be accomplished by performance of a reactor coolant system water inventory balance ("RCIB") procedure. As discussed below in further detail, none of the statutes or regulations cited in the indictment makes any ref-erence whatsoever either to unidentified leakage or to.the l RCIB procedure, and we will establish that nothing in those 1 kilexhibitsarecontainedinaseparateAppendixtothis Memorandum submitted herewith. 2
I statutes or regulations, or in the Company's license, required the use of an RCIB procedure in connection with the detection ) 1 or measurement of such leakage. To the contrary, the NRC has ! 1 explicitly required that methods other than the RCIB test be ! used to detect and measure unidentified leakage, and there is l no allegation in the indictment that those requirements were l l j violated. There is also no allegation in the indictment that the Company operated TMI-2 with unidentified leakage in excess of the limits allowed by law. Since the conduct with which the company is charged did not violate any legal requirement, the indictment must be dismissed as a matter of law. We shall begin with a brief description of the TMI-2 nuclear plant and an explanation of the basic terms and con-cepts relevant to the indictment. A. System Description A nuclear plant typically consists of a primary loop l and a secondary loop, roughly depicted in the schematic draw-ing appended as Exhibit B. The primary loop consists mainly of a nuclear steam supply system, the heart of which is the nuclear reactor containing the radioactive nuclear fuel. The nuclear reactor in TMI-2 is a pressurized water reactor, in which the radioactive nuclear fuel contained in the " core" of the reactor is surrounded at all times by cool- ' ing water, or " reactor coolant." During normal operations, l tha water is circulcted through the " reactor coolant system," which is a closed, self-contained system, by four reactor 3
coolant pumps. As it circulates through the core, the reactor coolant absorbs the heat constantly being generated by the core as long as the reactor is in operation. After the reactor coolant has absorbed the heat gen-erated by the core, it is pumped through pipes which are part of the reactor coolant system into the steam generators. There the heat is transferred from the reactor coolant water to colder water, known as'feedwater, which is fed into the steam generators on the secondary side. The feedwater then boils into steam. It is this steam which powers the turbine generator and produces electricity. B. Detection and Measurement of Reactor Coolant System Leakage In order to assure that excessive quantities of re-actor coolant do not e' scape from the system as the. result of leakage, NRC regulations, setting forth General Design Crite-ria for nuclear power plants, state that:
"Means shall be provided for detecting and, to the extent practical, identifying the location of the source of reactor
, coolant leakage." 10 C.F.R. Part 50, Ap- 2 l pendix A, Design Criterion 30. l l i In May, 1973 the NRC it. sued Regulatory Guide 1.45, l l entitled " Reactor Coolant Pressure Boundary Leakage Detection l l Systems" (Exhibit C), setting forth the Commission's "regula-tory position" with respect to such systems. The Regulatory Guide " describes acceptable methods of implementing (the re-quirement contained in Design Criterion 30] with regard to the 4
s91ecticn of locksgo datGetien systcas for th9 recctor coolant l pressure' boundary." (Reg. Guide 1.45-1.)2
! The Guide begins its section entitled " Discussion" by explaining the following premises for the leakage limita-tions and detection methods specified therein:
"The safety significance of leaks from the-reactor coolant pressure boundary (RCPB) can vary widely depending on the source of the leak as well as the leakage rate and duration. Therefore, the detection and ,
monitoring of leakage of reactor coolant '
, into the containment
- area is necessary."
(Reg. Guide 1.45-1.) The Guide then describes the need for separating such contain-
! I ment building leakage (see note 2, suora) into leakage from !
identified sources and leakage from unidentified sources.3 I ) The Guide explains that some leakage is unavoidable: ) i 2 The Reactor Coolant Pressure Boundary consists of the . pressure-containing components in the Reactor Coolant i System and all interconnected systems within the contain-( ment 10 CFR building S 50.2(which v). Thecannot containment be isolated by closing building housesvalves. the entire primary system and parts of the secondary system. I 3 Identified and unidentified leakage are defined by the Regulatory Guide as follows:
" Identified leakage is: (1) leakage into closed systems, such as pump seal or valve packing leaks that are captured, flow me-tered, and conducted to a sump or collect-ing tank, or (2) leakage into the contain-ment atmosphere from sources that are both specifically located and known either not to interfere with the operation of uniden-tified leakage monitoring systems or not to be from a flaw in the RCPB. Unidenti-fied leakage is all other leakage." (Reg.
Guide 1.45-1.) (Emphasis added.) l 5 '
. I i
"A liGited an3unt of lcokc93 is czpected from the RCPB and from auxiliary systems within the containment such as from valve stem packing glands, circulating pump
- shaft seals, and other equipment that can-not practically be made 1004 leaktight." 4 (Reg. Guide 1.45-1.) The Regulatory Guide then states: l "A small amount of unidentified leaka l l maybeimpracticaltoeliminate,but!et ' L should be reduced to a small flow rate, ' refe p(gpm)rably
. . . . less (Reg.
" than one Guide gallon 1.45-1.) per minute In the portion of the Guide setting forth the Com-mission's " Regulatory Position" .Section ( "C"), the Guide states that reactor coolant pressure boundary leakage detec-tion systems should include reactor coolant system leakage into the containment building atmosphere from identified and f unidentified sources. With regard to the unidentified leakage to.the reactor containment, the flow rate must be " monitored
- with an accuracy of one gallon per minute (gpm) or better."
(Reg. Guide 1.45-4.) The Guide then states that three sepa-
- rate detection methods should be employed in order to measure leakage within the 1 GPM limitation. The two methods that are mandated are:
"(1) sump level and flow monitoring and (2) airborne particulate radioactivity monitoring."
The third method may be selected from several that ire listed; but none of the methods listed for this purpose include the reactor coolant system water inventory balance
. .("RCIB") test, which is the subject of this indictment.
(Reg. 6 e ___.-,-----e--,,,,,,---,.,-,_,,-,--v.,., - m.--m,-,-_---g, .am., m c-- -._-.,,-,wm,7y- , - - , ,-.--w-,.-,e,,--.,-,e,.o.--, - p , , w.e..
d Guida 1.45-3-4,.S C, 11 1, 2, 3, 5.) Tha RCIB toct 10 rG-ferred to in the Regulatory Guide only as an acceptable method of detecting "intersystem leakage," such as leakage from the primary system to the secondary system, which does not include leakage from the primary system into the containment atmo-sphere. (Reg.-Guide 1.45-1-2.)
-The " sump," referred to in the Regulatory Guide, is
- a depressed-area on the floor of the containment building to
, which, by force of gravity, water leaking into the containment atmosphere will necessarily flow. When the water in the sump reaches certain levels, it is automatically pumped out of the sump into an auxiliary building. Thus, the monitoring of
! changes in the water level in the sump, or the amount of water flowing into or being pumped out of the sump, accurately mea-sures the maximum amount of water which may be leaking from the reactor coolant system into the containment atmosphere. As the Regulatory Guide states:
" Industry practice has shown that water 2 '
flow rate changes from 0.5 to 1.0 gpm can readily be detected in containment sumps by monitoring changes in sump water level, l in flow rate, or in the operating frequen-cy of pumps." (Reg. Guide 1.45-2.) In addition to the Regulatory Guide, the NRC has also issued a Standard Review Plan (Exhibit D), which is the basis for review of applications to construct and operate nu-clear power plants. Section 5.2.5 of the Standard Review Plan incorporates the guidelines set forth in the Regulatory Guide l 1 relating to the detection, identification, and monitoring of 7 l
i l reactor coolant system leakage and makes clear that sump moni-toring is the appropriate method for measuring unidentified leakage. Section 5.2.5, p. 3 (July 1981) ("The floor drainage system is reviewed to assure that (unidentified] leakage will flow readily to the sump or tank where it is collected
. . . "). By contrast, the RCIB test is referred to only as one of several means of detecting intersystem leakage. Id.
("Intersystem leak detection methods include' radioactivity, pressure, temperature, flow and pressure relief valve actua- ! tion indications, and the water inventory balance method.") C. Provisions of TMI-2 Technical Specifications Relative to
- Detection and Measurement of l Unidentified Leakage i
NRC regulations require each applicant for a nuclear power plant operating license to include in its application l proposed " technical specifications" governing, among other things, the design and operation of the plant. 10 C.F.R. 5 50.36(a). Many of the nuclear power plants now operating in this country are governed by technical specifications drafted by the individual utilities operating such plants. However, i by the time TMI-2 received its operating license in February ' 1978, the NRC had promulgated Standard Technical Specifica-tions which each license applicant was required to follow. j E.g., U.S. NUREG-0103, Standard Technical Specifications for Babcock & Wilcox Pressurized Water Reactors.4 4 Since TMI-2 utilized a Babcock & Wilcox pressurized water reactor, NUREG-0103 was applicable to it. 8 __ ___. _ . _ _ _ _ - . _ _ . . _ _ _ _ . _ _ _ _ _ _ __. _. _ _ _ . _ . _ _ _ . _ - _ _J
Tha TMI-2 T;chnicol Specificatieno dooling with leakage detection and measurement are derived directly from the NRC's Standard Technical Specifications, which track the relevant portions of the Regulatory Guide set forth above. J Thus, for example, the definitions of " identified" and "un-identified' leakage in the Standard Technical Specifications and in the TMI-2 Technical Specifications, are.in substantial-ly the same. language as the Regulatory Guide. (Como5re Tech. Spec . 1.14, 1.15 - with Reg. Guide 1.45-1.) (Relevant portions of the Technical Specifications are attached as Exhibit E.) Similarly, in specifying the Reactor Coolant System leakage detection systems that must be operable for the plant to operate (Tech. Spec. 3.4.6.1), the Technical Specifications list the tests that are provided for in the Regulatory Guide (1.45.4 1 3) and include expressly:
"b. The containment sump level. monitoring system."
As in the Regulatory Guide, there is no mention of the RCIB 1 test in this section. Furthermore, the Technical Basis for Section 3.4.6.1 (Exhibit F) of the Technical Specifications explicitly states that:
"The RCS leakage detection systems re-quired by this specification are provided to detect and monitor leakage from the Re-actor Coolant Pressure Boundary. These detection systems are consistent with the recommendations of Regulatory Guide 1.45
. . . . (Tech. Spec. Bases 3/4.4.6.1.)
9
Indeed, in explaining the various limitations on different types of leakage, the Technical Specification Bases use sub-stantially the same-language as the Regulatory Guide. (Co3-pare Reg. Guide 1.45-2 with Tech. Spec. Bases 3/4.4.6.2 (Ex-hibit F).) l Technical Specification 3.4.6.2 provides for the
! following limitations on leakage:
"a. No PRESSURE BOUNDARY LEAKAGE.
"b. 1 GPM UNIDENTIFIED LEAKAGE.
"c. 1 GPM total primary-to-secondary leakage through steam generators.
"d. 10 GPM IDENTIFIED LEAKAGE from the Reactor Coolant System.
, "e. 8 GPM CONTROLLED LEAKAGE at a Reactor Coolant System pressure of 2155+ 50 psig." In the event that such limitations are exceeded, the following actions are required: i "a. With any PRESSURE BOUNDARY LEAKAGE, be in at < least HOT STANDBY within 6 hours and in COLD j SHUTDOWN within the following 30 hours. i ) "b. With any Reactor Coolant System leakage greater i than one of the above limits, excluding PRES-SURE BOUNDARY LEAKAGE, reduce .the leakage rate to within limits within 4 hours or be in at least HOT STANDBY within the next 6 hours and i in COLD SHUTDOWN within the following 30 hours." The Technical Specifications also contain require-ments for surveillance, listing four surveillance methods as follows: 10
*a. Monitoring the containment atmosphere particu-late radioactivity monitor at least once per 12 hours. l l
"b. Monitoring the containment sump inventory and discharge at least once per 12 hours.
4 "c. Measurement of the CONTROLLED LEAKAGE from the reactor coolant pump seals when the Reactor- . Coolant System pressure is 2155+ 50 psig at i least once per 31 days. I Performance of a Reactor Coolant System water "d. inventory balance at leas't once per 72 hours during steady state operation." (Tech. Spec. 4.4.6.2.) j The above quoted paragraph does not indicate which j of the four tests should be performed in order to measure a ! particular type of leakage. From a technical point of view, !' however, it is clear that each of the.four test methods is not i applicable to each of the five limitations on-leakage.5 Thus, , I
- taking the provisions of the Technical Specification as a whole, it is plain that they follow the NRC's regulatory posi-tion expressed in the Regulatory Guide, as well as the Stan-dard Review Plan, with respect to the appropriateness of the sump monitoring system (but not the RCIB test) as a reactor l
coolant leakage detection method geared to the 1 GPM limit for l unidentified leakage. l 5 le I For (4.4.6.2 examp(a)), cannot containment measure radioactivity the controlledmonitoring leakage for which there is an 8 GPM limit (3.4.6.2(e)). Steam gener- l ator tube leakage (3.4.6.2(c)) for which there is a 1 GPM ' limit cannot be measured either by sump monitoring (4.4.6.2(b)) or by containment radioactivity monitoring (4.4.6.2(a)). , I l 11 1
. -_ - , . , . . - . ,-----,,,,.---,,-n,,,_,.,,----.,,-.n,__,--.n., -.,,---.,n, ---
D. Th7 Sumo Method for Moniterina Leakaq7 ! The accumulation in the containment sump includes , i all leakage from the reactor coolant pressure boundary. It i also includes all leakage into the containment from the large number of other (non-reactor coolant) fluid systems which are in the containment. Consequently, the sump collection rate i represents a conservative upper limit to unidentified leakage
'from the reactor coolant system pressure boundary. It in- :
i cludes some identified leakage which must be separated from unidentified leakage. Accordingly, as the Regulatory Guide
; indicates, sump monitoring provides an acceptable and accurate method of assuring compliance with the limiting condition for
] unidentified leakage contained in the Technical specification. i The sump collects all unidentified leakage in the containment building by force of gravity and automatically pumps out the contents. The rate of flow to the sump can be monitored by noting the time between pump-starts. By simple 4 arithmetic, the amount of unidentified leakage can be deter-mined from monitored and recorded data. As the Regulatory j Guide explains: ! " Uncollected leakage to the containment atmosphere from sources such as valve stem packing glands and other sources that are not collected increases the humidity of the containment. The moisture removed from the atmosphere by air coolers togeth-er with any associated liquid leakage to the containment is known as ' unidentified leakage' and should be collected in tanks or sumos where the flow rate can be estab-lished and monitored during plant opera-I ; 12 i i _...._-__._,_,..,_,,,,,e.._,__ _,__.,.,,w____..m4m_.,-- ._.,~-.~._,_m_.y-.__,_,_y_ __y _,.r, ., - --_,.y.,_,.-_.
, ._. _ _ .y_- - - - , , -
. . - . ~ , , _
tiGn." (R0g. Guido 1.45-1.) (Emphacis added.) Pursuant to TNI-2 Surveillance Procedure 2301-51 (Shift and Daily Surveillance Check) (Exhibit G), an internal Company procedure in force throughout the period covered by the indictment, the relevant sump monitoring data was recorded each shift, including sump level change since the last shift, number of sump pump starts since last reading, and gallons of water pumped from the sump. The data sheet (Exhibit H) spe-cifically refers to Technical Specification Action No. 3.4.6.2; and under the column headed " Required," it indicates that sump level changes and sump pump starts'are to determine i if the results are "Within Operational Leakage Limits of Tech. Spec. 3.4.6.2." There is no allegation in the indictment that j this procedure was not correctly followed and applied or that data sheets were not correctly filled out and preserved. E. The Reactor Coolant System Water Inventory Balance ("RCIB") Test The RCIB test referred to in the indictment first derives a figure for total leakage in the system (for which there is no specified limit). Identified leakage is then sub-tracted from total leakage and the remainder includes both un-identified and intersystem leakage.6 This method is not rec-6 Although the sum of these two items is sometimes loosely referred to as " unidentified" leakage, such leakage, as i measured by the RCIB test, actually includes both uniden- l tified leakage and intersystem leakage. In the Regula-tory Guide, intersystem leakage, which it defines as l (rootnote continued) I 13
. ommended by th3 RCgulatory Guida nor 10 it provided for in th3 Standard Review Plan as a means of measuring unidentified j leakage in order to ascertain if the 1 GPM limit is exceeded. i It is required to be performed (without reference to any par-ticular leakage limits) only once per 72 hours if there is steady-state operation. (Tech. Spec. 4.4.6.2.) The Technical
- Specifications do not require that there be an operable RCIB i
detection system at all times when the plant is operating. By contrast, if the sump monitoring system is not operable, the plant must be shut down. (Tech. Spec. 3.4.6.1.) ) F. The Indictment contrary to the provisions of the Regulatory Guide, 1 } Standard Review Plan and the Standard and TMI-2 Technical l Specifications, the indictment totally ignores the sump moni-1 ! toring method of leakage detection and asserts in its preamble that the RCIB procedure was the test "by which the defendant company was required to demonstrate that reactor coolant leak-l I age was within allowable limits." (P. 4, 1 13.) Specifical-l (Footnote 6 continued from previous page) leakage "to other systems across passive barriers," Reg. Guide 1.45-1-2, i s treated separately from unidentified leakage. The leakage measured by the RCIB test also in-4 cludes reactor coolant system leakage from low pressure ! portions of the system not part of the reactor coolant pressure boundary and in many cases not even in the con-l tainment building. This latter form of leakage is not j within the safet concerns expressed in the Regulatory i Guide. Accordin ly, none of these additional forms of - leakagle are with n the concept of the 1 GPM limit for un-identified leakage specified by the Regulatory Guide (1.45-2). 14 ---e -,--w------,.--we,-,-..- ,+--e+---=--.-,,,,- ,----,---m ---*-e.,4,-.-,--.---,,-,,.-----.y--,m+c-.---.,---,.,, --,-----.--+,-.,,-..,,-m
ly, tha indictment clicgas in Count 1 that tha Company wao ec-quired by its license "to establish, implement and maintain an accurate and meaningful reactor coolant system inventory water I balance procedure to demonstrate that unidentified leakage was within allowable limits." (P. 7, 1 2; emphasis added.) Noth- , ing in any statute or regulation even mentions unidentified leakage or RCIB testing, while the Regulatory Guide, Standard Review Plan and Standard Technical Specifications all make
- clear thac the RCIB method is not intended as a means of mea-suring such leakage.
f The entire indictment rests on its erroneous asser- ! tions concerning the role of the RCIB test, which are asserted i in paragraph 13, incorporated in each Count of the indictment, I and realleged many times. Thus, Counts 1 and 2 allege that 1
- the Company's license (Count 1) and NRC regulations (Count 2) I
- required it to establish and implement a reliable RCIB test to !
i measure unidentified leakage; Counts 3 and 4 allege that the l i ! ! Company's license (Count 3) and NRC regulations (Count 4) re- ! quired it to demonstrate through performance of an RCIB proce-i dure that unidentified leakage did not exceed allowable lim- ) its; Count 5 alleges that the Company's license required it to l i j enter the Action Statement when the RCIB procedure indicated that unidentified leakage exceeded 1 GPM; Counts 6 and 7 al- ! lege that the Company's license (Count 6) and NRC regulations , (Count 7) required i' to retain records of RCIB tests required by the Technical Specifications; Count 8 alleges that the Com- i l 15 ' (
,.,-.-----.+.-------._,.---.,-,.,_.vm..,,,--,.-,,-,,..,.-_%_ ,_,.m., . . , , , . ~ . , _ _ .._-,,m-,.,. e.---.....----. - - , ...---,-.-.m. - . - . _ , , - , - , . . .
pany's license required it to notify the NRC when it received information indicating that reactor coolant system leakage ex-coeded allowable limits; Counts 9 and 10 allege that NRC regu-lations required the Company to maintain adequate operating i logs (Count 9) and to identify deficiencies and non-l conformances (Count 10) relating to the conduct of RCIB tests; and Count 11 alleges that the Company concealed from the NRC that the RCIB test did not accurately measure unidentified leakage. As we shall demonstrate, the indictment fails to state an offense and must be dismissed on the ground that nei-ther TMI-2's license nor NRC regulations are in accord with the interpretation alleged in the indictment, and the defen-dant is not charged with doing anything actually prohibited by, or failing to do anything actually required by, the li-cense or regulations. Other grounds for dismissal are summa- ! rized below.
- Summary of Argument Point I of this Memorandum will establish, as a mat-ter of law, that the conduct alleged in the indictment did not violate provisions of the Company's license, Technical Speci-fications, or NRC Regulations, particularly when interpreted in light of the NRC's own administrative construction as re-l flected in its Regulatory Guide and Standard Review Plan.
- Point I will also establish that Count 11 of the indictment l fails to state an offense under 18 U.S.C. S 1001 on the 16 l
grounds that the facts allegedly concealed were not material as a matter of law and were known to the NRC at least since 1973, as reflected in the Regulatory Guide, and that the Com-pany had no duty to disclose the alleged facts, as the case
- law requires for a violation of Section 1001. M ., United States v. Irwin, 654 F.2d 671 (10th Cir. 1981), cert. denied, 455 U.S. 1016 (1982).
1 In Point II of the Memorandum, we demonstrate that
- the license provisions and regulations upon which Counts 1
) through 10 of the indictment are purportedly based (and upon j which any purported duty to disclose as required for a viola-i tion of Section 1001 would have to be based) failed to satisfy the Constitutional requirement, set forth in a long line of l Supreme Court and Court of Appeals cases, that statutory or
- regulatory provisions must be explicit and unambiguous in or-I der to serve as the basis for a criminal prosecution. M. ,
Dunn v. United States, 442 U.S. 100 (1979); M. Kraus & Bros,
- v. United States, 327 U.S. 614 (1946). The license provisions and regulations cited in the indictment do not prohibit the I
conduct with which the Company is charged, and certainly do not do so in explicit and unambiguous terms as required by these cases under the Due Process Clause. Particularly when ' dealing with intricate and highly technical rules and regula-tions, as in this case, it is a deprivation of the defendant's right to due process to charge it under the unclear and ambig-uous provisions relied on by the Government. 17 .
! l l i i Point III is based on the requirement in each of the three criminal statutes relied on in the indictment that the offense charged be committed " willfully." This means, under i controlling case law, that the alleged acts must have been performed with the " evil intent" or " bad purpose" of violating a known legal duty. United States v. Pomponio, 429 U.S. 10, 11 (1976); screws v. United States, 325 U.S. 91, 101 (1945); j, United States v. Rosenfield, 469 F.2d 598 (3d Cir. 1972), j cert. denied, 411 U.S. 932 (1973). While the indictment con-i tains general language tracking the statutory requirements, it l is clear under Russell v. United States, 369 U.S. 749 (1962) ! and subsequent cases, that this is insufficient. Moreover, 1 various counts of the indictment contain allegations which charge the company with mere negligence or inadvertence, thus ; f precluding a finding of willfulness as a matter of law and re-j quiring dismissal of the indictment. l Point IV is based on the requirement in Russell that ! each of the essential facts and elements of the offense be clearly stated in the indictment in order to enable the defen- { dant to prepare its defense, to assure it of the Constitution-l al protection against being charged twice for the same of-l fense, and to guarantee that the defendant is only tried on charges submitted to and approved by the grand jury. The to-i tal failure of this indictment to allege the essential facts , 1 ! ! and elements of the offenses charged -- including which of the ) j company's many employees committed the alleged acts in ques- ' i ! I I 18 l l
tion, when and in what manner -- and its failure to aver plainly the elements of the regulatory provisions allegedly j violated, requires dismissal of this indictment. Especially since many of the alleged acts are in fact required to be per-formed frequently and routinely during the course of normal plant operations, the failure of the indictment to state these essential facts and elements deprives the defendant of its right -- which cannot be satisfied by a bill of particulars -- to have the indictment make clear which conduct, committed by i j what person at what time, constituted the alleged offense. l In Point V we establish, based on the language, leg-islative history, purpose, and the NRC's construction of Sec-tions 101 and 222 of the Atomic Energy Act, 42 U.S.C. SS 2131 i { and 2272, that the violation of a provision of the company's 1 l license was not intended to be a criminal offense subject to , the severe sanctions provided under those sections. Section 2272 imposes substantially more severe sanctions than Section 2273, which applies to willful violations of certain NRC Regu- ! lations. It makes no sense, and is contrary to the clear in-i ' ' j tent of Congress, to interpret Section 2272 to apply to viola-4 tions of provisions of the Company's license, while Section 2273 imposes less severe sanctions for the violations of actu-al NRC Regulations. Since Counts 1, 3, 5, 6, and 8 of the in-f dictment are purportedly based solely on violations by the ! Company of provisions of its license, those counts all fail to state an offense as a matter of law. 19 I
.no- - ,,m - e , , - - ,,,,-------,-en e-. r,w---,+------w---,--> --r--me- --e- - - - - , - - -nr-pa--w-, ,,,--,--.--c .,,,,-----,~~w-,-c
Finally, Point VT establishes that certain parallel counts of the indictment are based on the exact same conduct, j the only difference'being that one count alleges a violation of a license provision and the other a violation of a regula-tion. Those counts are therefore multiplicitous under the rule of Blockburger v. United States, 284 U.S. 299 (1932). In light of the prejudice caused to the defendants by being
- charged with a multiplicity of counts, which in any event can-l not sustain multiple convictions, such counts must be dis-missed.
ARGUMENT Point I THE INDICTMENT RESTS ON A MISINTERPRETATION OF THE RELEVANT PROVISIONS OF i
. TMI-2's TECHNICAL SPECIFI- '
CATIONS AND NRC REGULATIONS Counts 1 through 10 of the indictment allege that l the Company violated Sections 2131 and 2272 of the Act by vio-lating provisions of its license and Section 2273 of the Act ] f by violating NRC regulations. It is black-letter law that the ; meaning of statutes and regulations is a matter of law for the ] j court. Esg., Binoham's Trust v. Commissioner, 325 U.S. 365, , { 370-71 (1945); Gaibis v. Werner Continental, Inc. , 565 F. l Supp. 1538, 1548 (W.D. Pa. 1983); International Society for j Krishna Consciousness, Inc. v. Rochford, 425 F. Supp. 734, 738 ! 1 (N.D. Ill. 1977), aff'd in part, rev'd in part on other l crounds, 585 F.2d 263 (7th Cir. 1978). It is also clear, 20 t i
, -+
w--ww -,--, em ,v - , o www=r---we, w rw---gvw---w--y---.+--,u re---m w-wm-w--r ----www--- n o -w-- _mwn-~.--e-.-erm-w- - - - e ,-w
J based en tha requirements of dua procosa diccuoced in moro ds-tail in Point II, infra, that " regulations and statutes must be construed in favor of the accused and cannot be enlarged by 1 judicial construction beyond the language used." United States v. Fisher, 456 F.2d 1143, 1145 (10th Cir. 1972). Ac- l cord, Dunn v. United States, 442 U.S. 100, 112-13 (1979); Dia- , 1 mond Roofine Co. v. Occupational Safety and Health Review Com-mission, 528 F.2d 645, 649 (5th Cir. 1976). Since, as a mat-ter of law, the statutes, regulations and license provisions purportedly incorporated into statutes relied upon in the in-j dictment do not state what the Government alleges that they ! mean, the indictment must be dismissed. Moreover, it is well established that an administra-l tive agency's construction of statutes within its area of ju-risdiction is entitled to " great deference," and that "(w] hen the construction of an administrative regulation rather than a ; i
- statute is in issue, deference is even more clearly in order."
Udall v. Tallman, 380 U.S. 1, 16 (1965). Accord, Bowles v. Seminole Rock Co., 325 U.S. 410, 413-14 (1945); Budd Co. v. OSHRC, 513 F.2d 201, 205 (3d Cir. 1975). Since the NRC's in- , terpretation of the regulatory provisions at issue, including its own regulations and the company's Technical Specifications derived from the NRC's Standard Technical Specifications and Regulatory Guide, is directly contrary to the indictment's in- l l terpretation of those provisions, the indictment is plainly l insufficient as a matter of law and must be dismissed. i l 21
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, . - _ . . . . , . - - - ~ ~ _ , . , . . - . . _ _ . . . , _ . - . _ . _ . = , . , - - . _ . - - - - < . , . _ , _ , . . - . . _
A. Counts 1, 3, 5, 6 and 8,-which Allege 1 License Violations, Rely on TMI-2
- Technical Specifications Which Do Not Require an RCIB Procedure in Connection 1
With Unidentified Leakage As set forth above, the only reference in the TMI-2 Technical Specifications to an RCIB test is contained in Sec-tion 4.4.6.2, which requires " performance of a Reactor Coolant System water inventory balance at least once per 72 hours dur-ing steady state operation." Section 4.4.6.2(d).7 There is J l no connection in the Technical Specifications between this RCIB procedure and the unidentified leakage limit of 1 GPM
- contained in Section 3.4.6.2. To the contrary, Section J
l 4.4.6.2 sets out four surveillance methods, specifically in-cluding "[m]onitoring the containment sump inventory and dis-charge at least once per 12 hours," by which to demonstrate j satisfaction of the five leakage limits stated in Section 3.4.6.2. Since, as set forth above, the sump monitoring meth-od -- and not the RCIB test -- is mandated by the Regulatory Guide (which served as the basis for the relevant TMI-2 Tech-nical Specifications) and by the Standard Review Plan as a means of measuring unidentified leakage for purposes of a 1 ? GPM limit, the Technical Specifications cannot be read as re-quiring that the RCIB test be utilized for that purpose. 7 As discussed in more detail below, there is no allegation that this requirement of performing an RCIB test "at
- least once per 72 hours during steady state operation"
! was not fulfilled. Indeed, in a document produced by the i Government pursuant to Brady v. Maryland, 373 U.S. 83 (1963), the NRC informed the United States Attorney that this requirement was in fact met. See p. 25, infra. 22
Ind:ed, in cecordanco with th3 R2gulatory Guida, Section 3.4.6.1 of the Technical Specifications only requires that three leakage detection systems be operable in order for the plant to remain in operation. Those three include the
" containment sump level' monitoring system" but do not include the RCIB test. As shown in our detailed discussion, supra, j
based on these provisions of the Technical Specifications, particularly when read in light of the corresponding Regula-tory Guide provisions, TMI-2's Technical Specifications do not link the RCIB test to unidentified leakage limitations. Counts 1 and 3 of the indictment allege that the Company violated its license by failing to establish and im-plement a reliable RCIB test to measure unidentified leakage (Count 1) and by failing to demonstrate by performance of an RCIB test that unidentified leakage was within allowable lim- , its (Count 3). Since the Company's license requires no such thing, those Counts must be dismissed for failing to state an <' offense. Counts 5 and 8 must be dismissed for the same rea- , ! son. The indictment alleges that the Company's license re-
- quired it "to enter the Action Statement" when the RCIB proce-dure indicated that unidentified leakage was in excess'of al-I lowable limits (Count 5), and "to notify the NRC if it failed to enter the Action Statement" under such circumstances (Count,' ;
8). However, the relevant Technical Specification, Section 3.4.6.2(b), makes no mention of the RCIB test or of taking any-23 l
"ceticn' baccd cn tho ecsults of on RCIB toct. Morocvar, os e
explained above, the Regulatory Guide, the Standard Review
- Plan, and the Technical Specifications preclude any connection between the RCIB surveillance method contained in Section i
4.4.6.2(d) and the 1 GPM limit on unidentified leakage con-
; tained in Section 3.4.6.2.
Finally, the indictment is incorrect as a matter of law in charging that the Company was required "to enter the Action Statement" based on information, whether from the RCIB test or otherwise, which only " indicated" that unidentified leakage exceeded 1 GPM. The relevant portion of the Technical Specification provides that:
"With any Reactor Coolant. System leakage
; greater than any one of the above limits
. . . reduce the leakage rate to within limits within 4 hours . . . . " Section 3.4.6.2(b).
i Thus, the Technical Specification applies only when leakage is actually greater than the specified limits. The fact that in-formation (particularly what the indictment i tself alleges is ' 1 unreliable information from an RCIB test, see, e.g., Counts'l
; and 2) incorrectly indicates excessive unidentified leakage, i
did not require implementation of this portion of the Techni-
! cal Specification. Since the indictment nowhere alleges that , leakage at TMI-2 actually exceeded Technical Specification
- limitations, Counts 5 and 8 fail to state an offense when they I
charge only that information obtained from an RCIB test or otherwise " indicated" excessive leakage. I l l 24 5
- , . . , - , - , - - , ~ . . - , . . . - . - - , - , - , . . .w,e-,,,,.,.--...-,m-,-%,,-..n.-.w-.+w---n-, ,,--,.,-----s--,..-w, . . ,..y ,,,--..------.m,-,v -,-,
d Th3 cnly othar Count of tha indictment bas;d en al-
- leged license violations -- Count 6 -- also fails to state an offense. Count 6 alleges that the Company was required by its license to retain all RCIB test results for at least five yearsandthattheCompanyviolatNdtheserequirementsbyde-stroying, discarding, and failing to retain such records.
However, of the relevant Technical Specifications, Section 6.10.l(d) only requires the retention for five years of:
" Records of surveillance activities, in-spections and calibrations required by these Technical Specifications." (Empha-sis added.)
! As set forth above, the surveillance requirements in the Technical Specifications only require that an RCIB test be performed "once per 72 hours during steady state operation." ! Section 4.4.6.2(d). There is no allegation anywhere in the indictment that the Company failedi to take, and to retain rec-ords of, at least one RCIB test every 72 hours during steady I ) state operation. Accordingly, the indictment fails to allege that records of " required" surveillances were not maintained. In this regard, it also may be noted that, in a document pro-4 duced by the Government pursuant to its obligations under Bra- l dr v. Maryland, 373 U.S. 83 (1963), dated June 16, 1983, the NRC's TMI-2 Project Section Chief informed James West, Esq., Assistant United States Attorney, based on the NRC's analysis l of the Company's RCIB test records, that "the operators met l the time-f requency requirements for the performance of these l tests even when one used the conservative interpretation of 25
conducting a tost (ot] or chovo 200* F.* (Exhibit I.) Sinco more than one RCIB test per 72 hours was not required by the Technical Specifications, there was no requirement that the results of any additional tests be retained for five years in the Company's files.8 ) Moreover, as demonstrated above, the Technical Specifications did not require the performance of an RCIB test
. to ensure that unidentified leakage was within the 1 GPM lim-it. Since the sump monitoring method, not the RCIB test, was the appropriate surveillance method for detecting and measur-
. ing unidentified leakage, there was no requirement under the Technical Specifications to retain records of RCIB tests for that purpose; and the indictment, which alleges that the RCIB test was inaccurate and meaningless, fails to allege any other purpose for retaining such records. In any event, since the Company concededly retained the records of at least one RCIB test for every 72 hours during steady state operation, it was not required to retain the results of any other RCIB tests. l l l 8 It should also be noted that Section 4.0.2 of the Techni- , cal Specifications provides for a) an extension of up to 25% of the time during which a surveillance test must be performed, and b) a total combined extension for any three consecutive surveillance tests of up to 3.25 times the specified time. Thus, under the first of these pro-visions, the Company was only required to perform one RCIB test every 90 hours (72 x 1.25 = 90), and under the second extension provided under the Technical Specifica-tions, the surveillance requirements were satisfied as long as three RCIB tes's were performed within 234 hours (72 x 3.25 = 234). 26 l l l
- .. .. . .-. _ ._- - .... - -__ - . - - \
B. NRC R gulations Do Not Reguiro en RCIB Procedure in Connection With Unidentified Leakage There is no reference in any of the NRC regulations cited in the indictment either to unidentified leakage or to an RCIB procedure. In light of the NRC's position in the Reg-ulatory Guide and the Standard Technical Specifications, which do not require an RCIB procedure in connection with the detec-tion or measurement of unidentified leakags, it is clear that the regulations in question also do not require such a proce-dure for that purpose. Counts 2 and 4 of the indictment allege that 10 C.F.R., Part 50, Appendix B, required the Company to maintain an " accurate" and " meaningful" RCIB procedure in, order to dem-onstrate that unidentified leakage was within allowable limits (Count 2) and to actually demonstrate that such leakage was within allowable limits by performance of an RCIB procedure (Count 4). While the indictment fails to specify which of the 18 paragraphs of Appendix B was allegedly violated (see Point IV, infra), it does not appear that any of these paragraphs , support the indictment. Appendix B, entitled " Quality Assur-ance Criteria for Nuclear Power Plants and Fuel Reprocessing i Plants," sets forth general standards for the assurance of j quality in the design, construction, and operation of nuclear plants. No mention is made of unidentified leakage or of an RCIB procedure. In view of the NRC's regulatory position, ex-pressed in the Regulatory Guide and Standard Review Plan, it 27
.- . -_.. ~. . . _ .. - - __ _ _ _ _ _
is cicar that tho maintcnonco of en RCIB proccduro wcs not ro-quired in connection with the detection and measurement of un-identified leakage. The Regulatory Guide, which is followed by TMI-2's Technical Specifications, and the Standard Review Plan prescribe the sump monitoring method and not the RCIB 1 l j test for that purpose. Thus, nothing in Appendix B supports l the charges in Counts 2 and 4 of the indictment. I Count 7 of the indictment alleges that Appendix B and 10 C.F.R. 5 50.71 required the Company to retain records of all surveillance activities required by the Technical Specifications for a period of at least five years and further alleges that the RCIB procedure was such a surveillance activ-ity. However, as demonstrated above, only one RCIB test per 72 hours was required by the Technical Specifications, and rec-ords demonstrating compliance with that requirement were re-
- tained. Moreover, nothing in Appendix B appears to require that records of all surveillance activities required by the I Technical Specifications be retained. Appendix B only re- !
quires that sufficient records be maintained to furnish evi-dence of activities affecting quality (Paragraph XVII). Since, as demonstrated above, tha sump monitoring data and not l the RCIB procedure results were necessary to assure that un-identified leakage was within allowable limits, Appendix B did not require the retention for five years of RCIB results. There is also nothing in 10 C.F.R. S 50.71 which re-quires the retention of such results. Section 50.71 only re-28
quiros rotontien of *(r]ccords which cro requircd by tho ecg-ulations in this part, by license condition, or by technical specification. . . . We have already :eviewed the require-ments of the license and technical specifications and demon-strated that, since the surveillance requirement contained in Section 4.4.6.2 of the Technical Specifications only requires that an RCIB test be performed at least once every 72 hours, and records demonstrating compliance with this requirement
-were retained, the indictment fails to state an offense under Section 50.71.
Counts 9 and 10 also fail to state an offense based on alleged violations of 10 C.F.R. Part 50, Appendix B. Count 9 alleges that Appendix B required the Company to maintain ad-4 equate operating logs relating to the conduct of RCIB tests. However, since nothing in Appendix B relates to RCIB testing I and since'the Technical Specifications only required an RCIB test once per 72 hours, Appendix B did not require that oper-ating logs be maintained with respect to superfluous RCIB test i ! results. Moreover, since the sump monitoring data was suffi-cient to assure that unidentified leakage was within permissi-ble limits, there is nothing in the general " quality assur-ance" criteria of Appendix B which requires maintenance of op-erating logs with respect to RCIB tests. Similarly, Count 10 alleges that Appendix B required the Company to identify " deficiencies" and "nonconformances" encountered in its RCIB testing. However, Appendix B only re-29
quired that mensurcs "be estchlished to accuro that conditions adverse to quality," such as " deficiencies" and "nonconfor-mances," be identified and corrected. (Paragraph INT . ) Even if these general and vague references in Appendix B (see Point II, infra) were interpreted to apply to unidentified leak rate testing, which is not even mentioned in the Regulation, there is nothing in Appendix B which requires the identification of
" deficiencies" and "nonconformances" in superfluous RCIB tests over and beyond those required in the Technical Specifica-tions. Since there is no allegation that the Company failed to fulfill the requirements of Appendix B with respect to the one RCIB test per 72 hours which was required to be performed under the Technical Specifications, Count 10 fails to state an offense under the Regulations. In addition, as set forth above, since the sump monitoring method and not the RCIB pro-cedure was required by the Regulatory Guide and the Technical Specifications in order to assure that unidentified leakage was within allowable limits, the Appendix B requirement of l
measures "to assure that conditions adverse to quality" are ; identified did not require the identification of "deficien-cies" and "nonconformances" in connection with RCIB testing. C. Count 11 Fails to State an Offense l The final Count in the indictment. alleges that the , l Company concealed from the NRC by a " trick, scheme, or device" l l the fact that the RCIB procedure did not accurately measure l i 30
unidcntificd lockcg3 at TMI-2, in violation of 18 U.S.C. I 5 1001. That Section provides, in relevant part, as follows: l "Whoever, in any matter within the juris- ' diction of any department or agenc'v of the United States knowingly and willfu..ly fal- l sifies, conceals or covers up by any trick, scheme, or device a material fact
. . . sha l be fined not more than $10,000 l
or impris}ned o not more than five years, or ! both." It is well established that Section 1001 only ap-plies to the falsification er concealment of material facts which are calculated, and whose natural tendency would be, to influence the exercise of a government function. United States v. Talkinaton, 589 F.2d 415, 416-17 (9th Cir. 1978); United States v. Beer, 518 F.2d 168, 171 (5th Cir. 1975); United States v. Clearfield, 358 F. Supp. 564, 574 n.23 (E.D. Pa. 1973). As the Court held in-United States v. Talkington, supra: l
"[T]he test for determining the material-ity of the falsification is whether the falsification is calculated to induce ac-tion or reliance by an agency of the Unit-ed States, -- is it one that could affect or influence the exercise of-governmental functions, -- does it have a natural ten- ,
dency to influence or is it capable of in- ' fluencing, agency decision?" 589 F.2d at , 416, quoting United States v. East, 416 ! F.2d 351, 353 (9th Cir. 1969). It is also well settled that, under Section 1001,
"[mlateriality is . . . a matter of law." United States v.
Beer, supra, 518 F.2d at 171. 31
+ In this caso, it is elect as a matter of law that the fact allegedly concealed by the Company, i.e., that the RCIB procedure did not accurately measure unidentified leak-- 1 age, was not material. As discussed above, the NRC's regula-tory position, as set forth clearly in the Regulatory Guide, I was that the sump monitoring procedure and not the RCIB test ) was a meaningful method of determining whether unidentified leakage was within the permissible limit of 1 GPM. The TMI-2 Technical Specifications, patterned on the Regulatory Guide, are to the same effect, as is the Standard Review Plan. The fact (if it was a fact) that the RCIB test did not accurately measure unidentified leakage was therefore not material as a matter of law. Moreover, the very fact that, in the Regulatory j Guide and the Standard Review Plan, the NRC recommended vari-ous methods including the sump monitoring method and not the RCIB procedure for detection of unidentified leakage of 1 GPM establishes that the NRC knew since.1973, when the Regulatory l Guide was issued, that the RCIB test was inappropriate and not accurate for that purpose. The prohibition in Section 1001 against concealment of material facts from the Government l plainly cannot apply to facts which have long been known to l the Government, and in fact are obvious from published regula-tory materials. Indeed, it is well established that Section 1001, despite its broad language, must be strictly construed to cov-32
or only thoce false statements and concealments of Esterial facts which would tend to defraud the government or pervert the performance of governmental functions. United States v. Gilliland, 312 U.S. 86, 92-93 (1941); United States v. Beer, suora, 518 F.2d at 170. As the Court held in United States v. Bedore, 455 F.2d 1109 (9th Cir. 1972): it is evident "From that the statutory section history, 1001 was not intended to reach all false statements made to govern-mental agencies and departments, but only those false statements that might support fradulent claims against the Government, or that might pervert or corrupt the au-thorized functions of those agencies to 4 whom the statements were made." 455 F.2d at 1111. ! 4
. 1 Plainly, the alleged concealment of the " fact" that the~RCIB j test was not an accurate and meaningful method of measuring 1 GPM of unidentified leakage could not " pervert or corrupt the j authorized functions" of the NRC or any other governmental agency, when the NRC's Regulatory Guide reveals o'n its face that, since 1973, the NRC was recommending the sump monitoring and other methods, but not the RCIB test, as the appropriate means of detecting and measuring such leakage.
Count 11 must also be dismissed because it fails to allege any duty on the part of the Company to disclose the facts which it is alleged to have concealed. As the Court held in United States v. Irwin, 654 F.2d 671 (10th Cir. 1981), cert. denied, 455 U.S. 1016 (1982), in reversing a conviction under Section 1001: 33
- - ,em -ow e-s - - - e ---
l l
"We believe that it was incumbent on the Government to prove that the defendant had-the duty to disclose the material facts at the time he was alleged to have concealed them. . . . [T: here can be no criminal conviction for tailure to disclose when no duty to disclose is demonstrated." 654 F.2d at 678-79 (emphasis added).
Accord, United States v. Dorey, 711 F.2d 125, 128 (9th Cir. 1983); United States v. Tobon-Builes, 706 F.2d 1092, 1096-97 (llth Cir. 1983). I The indictment does not allege any basis for a duty on the part of the company to disclose to the NRC the alleged fact that the RCIB test was inaccurate and meaningless as a method of measuring 1 GPM of unidentified leakage. Moreover, there is no reason to assume that licensees such as Met-Ed would have a duty to disclose to the NRC that the RCIB proce-dure was not accurate or meaningful for measuring 1 GPM of un-identified leakage, especially when the NRC's own Regulatory Guide and Standard Review Plan did not recommend-that test for that purpose (but instead recommended other tests) and there
- was nothing in the regulations which required the RCIB test for that purpose. Furthermore, as demonstrated in the above discussion with respect to Counts 6, 7, 9 and 10, and as re-l flected in the NRC's own statement tc the United States Attor-ney (see p. 25, supra), the Company fulfilled any duty it j i
might have had-with respect to maintaining and making avail- l able for inspection by the NRC records of all RCIB tests which were required by the Technical Specifications. Since the Com-pany had no duty to disclose the only alleged fact which forms 34
tho basis of ths Gavornacnt's Scction 1001 count, i.e., that the RCIB test was unreliable and meaningless as a method of measuring 1 GPM of unidentified leakage, and indeed made available to the NRC all records which may have been required, Count 11 fails to state an offense under Section 1001.and must ; be dismissed. l Point II , l THE LICENSE PROVISIONS AND REGULATIONS CITED IN THE INDICTMENT CANNOT GIVE RISE TO CRIMINAL LIABILITY DUE TO VAGUENESS The Supreme Court has repeatedly held that "funda-mental principles of due process . . . mandate that no indi-vidual be forced to speculate, at peril of indictment, whether his conduct is prohibited." Dunn v. United States, 442 U.S. 100, 112 (1979). Accord, Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); United States v. Harriss, 347 U.S. 612, 617 (1954); Lanzetta v. New' Jersey, 306 U.S. 451, 453 (1939); McBoyle v. United States, 283 U.S. 25, 27 (1931); Goldy v. > Beal, 429 F. Supp. 640, 647-48 (M.D. Pa. 1976); Bykofksy v. Borough of Middletown, 401 F. Supp. 1242, 1248 (M.D. Pa. j 1975), aff'd, 535 F.2d 1245 (3d Cir. 1976). Accordingly, a party may not be criminally prosecuted unless the provision in question clearly and unambiguously prohibits the conduct charged in the indictment. E.g., M. Kraus & Bros. v. United States, 327 U.S. 614, 621-22 (1946). As demonstrated below, the provisions upon which this indictment are based fall far 35
short of being cicar and unnabiguous, ce required for crininni prosecution. The vagueness doctrine applies regardless of whether the elements of the crime are set forth in a statute, regula-tion, or other document delineating the applicable standard of l conduct. Thus, in M. Kraus & Bros. v. United States, supra, ' the Supreme Court applied the doctrine to regulations promul-gated by the Price Administrator under the Emergency Price Control Act. In reversing a criminal conviction under these regulations, the Court held as follows:
"This delegation to the Price Administra-tor of the power to provide in detail against circumvention and evasion, as to which Congress has imposed criminal sanc-tions, creates a grave responsibility. . .
Hence to these provisions must be applied the same strict rule of construction that is applied to statutes defining criminal action. In other words, the Administra- - tor's provisions must be explicit and un-ambiguous in order to sustain a criminal prosecution. . . ." 327 U.S. at 621 (em-phasis added). Accord, United States v. Beam, 686 F.2d 252, 258 (5th Cir.- 1982); United States v. Rust Communications Group, Inc., 425 F. Supp. 1029, 1033 (E.D. Va. 1976); United States v. ALP Trucking Corp., 113 F. Supp. 549, 551 (D.N.J. 1953). The vagueness doctrine has also-been applied in cases involving the violation of safety standards promulgated 36
undar tha Occupatiensi Safoty cnd'H3cith Act.9 ~ As tha court held in' Diamond Roofinq Co. v. Occupational Safety and Health 1 . Review Commission, supra:
"Like other statutes and regulations which allow monetary penalties against those who violate them, an occupational safety and health standard must give an employer-fair warning of the conduct it prohibits or re-quires, and it must provide a reasonably clear standard of culpability to circum--
scribe the discretion of-the enforcing au-thority and its agents."
"If a violation of-a regulation subjects private parties to criminal or civil sanc-tions, a regulation cannot be. construed to mean what an agency intended but did not adequately express." 528 F.2d at 649.
Counts 1-4 As demonstrated in Point I, supra, neither the Com-pany's license nor the NRC regulations cited in the indictment required it to establish or maintain an RCIB procedure to mea-sure unidentified leakage or to demonstrate through perfor-mance of an RCIB test that such leakage was within allowable i 9 Indeed, the vagueness doctrine has bee'n applied not only l to regulations drafted by administrative agencies pursu-l ant to statutory authority, but also to standards of con-1 duct drafted by private parties or organizations which are incorporated by reference into statutes or regula-tions forming the basis for alleged criminal violations. E. ., Diamond Roofing, supra; Marshall v. Anaconda Co., l F.2d 370, 376-77 (9th Cir. 1979); Diebold, Inc. v. Marshall, 585 F.2d 1327, 1335-36 (6th Cir. 1978); Usery
- v. Kennecott Copper Corp., 577 F.2d 1113, 1118-19 (10th i l Cir. 1977). Here, however, we are dealing solely with regulations and technical specifications promulgated by ;
the NRC. See NUREG-0103, p. 8, supra. ' 37
licits. Ind ed, th3 NRC's own Regulatory Guido, upon which the Company's Technical Specifications are based, and the Standard Review Plan make clear that the RCIB test was not in-tended as a means of detecting or measuring unidentified leak-age. Assuming arquendo that the license and regulations could be interpreted to require that an RCIB procedure be estab-lished for that purpose, it is obvious that they do not: impose such a requirement in " explicit and unambiguous" terms.10 Kraus, supra, 327 U.S. at 621. To the contrary, for all the reasons set forth in Point I, supra, the Technical Specifica-tions are, at best, vague as to whether the RCIB test was meant to relate in any way to unidentified leakage limita-10 It should be noted that under the Due Process Clause, an administrative interpretation of a statute or regulation which is not explicit and unambiguous on its face cannot cure the resulting' vagueness for purposes of a criminal prosecution. As the Supreme Court held in Kraus: i "Not even the Administrator's interpreta-tions of his own regulations can cure an
- omission or add certainty and definiteness to otherwise vague language. The prohib-ited conduct must, for criminal purposes, ,
i be set forth with clarity in the regula-tions and orders whien he is authorized by Congress to promulgate under the Act. Congress has warned the public to look'to that source alone to discover what conduct is evasive and hence likely to create criminal liability." 327 U.S. at 622. In any event, in this case the NRC's interpretation of its relevant regulatory provisions is contrary to that of the indictment; dismissal is therefore required for the reasons stated in Point I, supra, as well as on vagueness grounds. 38 l
. - , -----------D
tions. It is patently unfair, and a violation of the defen-dant's right to due process, to subject it to criminal penal-ties for the alleged violation of such an unclear and ambigu-ous provision. Similarly, the regulations do not even mention an RCIB test or unidentified leakage and certainly do not relate the RCIB test to the measurement of unidentified leakage. Thus, under-the Government's apparent reading of the Technical Specifications and regulations, the Company would have been
" forced to speculate, at peril of indictment, whether [its]
conduct (was] prohibited." Dunn v. United States, supra, 442 U.S. at 112. Counts 1 through 4 of the indictment, which are based on this purported link between the RCIB test and the measurement of unidentified leakage, therefore violate "funda-mental principles of due process" which require their dismiss-al. Id. i Counts 5 and 8 Counts 5 and 8 suffer from this same infirmity of vagueness. Those Counts allege that the Company's license re- t quired it "to enter the Action Statement" when it received in-formation from the RCIB procedure which " indicated" that un-identified leakage was in excess of 1 GPM and to notify the NRC "if it failed to enter the Action Statement." Even if the Technical Specifications could be read to impose such require-ments (see Point I, supra), they surely fail to do so in the clear, unambiguous manner required for the imposition of crim-39
inal penalties. E.g., M. Kraus & Bros. v. United States, su-ora, 327 U.S. at 621. In addition to the fact that the Technical Specifi-cations do not link the RCIB test to the limitation on uniden-tified leakage, as set forth above with respect to Counts 1-4, i the Technical Specifications also do not provide (and certain-ly do not clearly and unambiguously provide) that any action is required, as the indictment alleges, when "information" is received " indicating" excessive leakage. To the contrary, the Technical Specifications require action only if reactor cool-ant system leakage is " greater than any one of the above lim-its," including i GPM of unidentified leakage.ll The indict-ment does not allege that actual unidentified leakage ever ex-caeded the one GPM limitation contained in the Technical 1 Specifications (Section 3.4.6.2). Counts 5 and 8 allege only l that the Company received "information" which " indicated" that unidentified leakage was over 1 GPM. Since there was no vio-lation of any clear requirement to take action and there was no clear duty to report anything to the NRC, unless actual 11 The relevant portion of the Technical Specification pro-vides as follows:
"With any Reactor Coolant System leakage l greater than any one of the above limits, excluding PRESSURE BOUNDARY LEAKAGE, re-duce the leakage rate to within limits within 4 hours or be in at least HOT l STANDBY within the next 6 hours and in COLD SHUTDOWN within the following 30 hours." Section 3.4.6.2(b).
i 1 40 I l
leakage exceeded allowable limits, Counts 5 and 8 must be dis-missed. Counts 5 and 8 also require dismissal on vagueness grounds for an additional, independent reason. Contrary to the indictment's allegations, nothing that we are aware of in l the Technical Specifications requires that, in the words of l the indictment, "to enter the Action Statement." That phrase !
-- whatever it means -- is not used in the Technical Specifi-cations. The relevant Technical Specification (quoted in note 11, supra) provides instead that when reactor coolant system leakage is greater than any of the prescribed limitations, the operator is to " reduce the leakage. rate to limits within 4 hours or be in at least HOT STANDBY within the next 6 hours and in COLD SHUTDOWN within the following 30 hours."
As discussed in more detail in Point IV, infra, Counts 5 and 8 are fatally deficient because their allegation that the Company " failed to enter the Action Statement" does not set forth clearly the conduct which allegedly violated the Company's license. Among other things, it is impossible to tell from the indictment whether the Company is being charged with failing to take some initial action required under this provision or whether it is being charged with failing to com-plete those actions. Even assuming, arquendo, that this pro-i vision applies whenever an RCIB test " indicated" that uniden-1
- tified leakage exceeded 1 GPM, there are a number of reasons why the Company would not have been required to complete all 41
1 the actions set forth in the Technical Specification af ter ob-taining an RCIB test result in excess of 1 GPM. For example, under the TMI-2 RCIB Procedure (SP 2301-3Dl, Section 6.4) (Ex-hibit J) the operators were instructed to take anotherlRCIB test if the results of a previous test indicated that uniden-tified. leakage was over 1 GPM. The operators could also have determined by examining the sump data, as recommended by the Regulatory Guide and Standard Review Plan, or by other appro-priate means such as physical inspection,12 that unidentified leakage was actually less than 1 GPM. Under such circum-stances, the Technical Specification does not require (and certainly does not clearly and unambiguously require) that the Company continue with the actions set forth therein. Indeed, Section 3.0.2 of the Technical Specifica-tions states that when action is required because a limiting - condition for operation, such as 1 GPM of unidentified leak-age, is above the limit, completion of such action is not re-quired if the condition necessary for operation is restored.13 )
)
12 As the Company's RCIB procedure makes clear, if unidenti-fied leakage determined by an RCIB test exceeds 1 GPM, a physical inspection is to be performed to determine the source of the leakage. Any leakage which is found pursu-ant to such an inspection is considered " identified leak-age" which must be subtracted from the amount of uniden-tified leakage, possibly resulting in the reduction of unidentified leakage to below 1 GPM. SP 2301-3Dl, Sec-tion 6.4. 13 Section 3.0.2 states that:
" Adherence to the requirements of the Lim-(Footnote continued) 42 1 1
Thua, if the operators determined at any point before they ] were required to shut down the plant that unidentified leakage , was under 1 GPM, they were not required to complete the action by shutting down. Moreover, Section 4.0.3 of the Technical Specifica-tions provides that the performance of a surveillance require-ment within the time stated in the " action" portion of a Tech-nical Specification constitutes compliance.14 Thus, assuming as the indictment does that the RCIB test is the applicable surveillance requirement, performance of such a test within four hours, if it showed unidentified leakage below 1 GPM, would have satisfied the requirement of reducing leakage to within allowable limits and would not have required completion of the action by shutting down the plant. I (Footnote 13 continued from previous page) iting Condition for Operation and/or asso-ciated ACTION within the specified time interval shall constitute compliance with the specification. In the event the Lim-iting Condition for Operation is restored prior to expiration of the specified time interval, completion of the ACTION state-ment is not required." (Emphasis added.) 14 Section 4.0.3 states that: I " Performance of a Surveillance Requirement within the specified time interval shall constitute compliance with OPERABILITY re-quirements for a Limiting Condition for Operation and associated ACTION statements unless otherwise required by the specifi-cation." i i 43
1 In vicw of th9 fcet.that Count 5 allcgas enly that the Company " failed to enter the Action Statement," an allega- ! tion which is itself fatally ambiguous (see Point IV, infra), l it is impossible to tell whether the indictment is charging ; the Company with failing to go into hot standby and cold shut-down regardless of whether a subsequent RCIB test, sump data i examination, or physical inspection established that unidenti-fied leakage was within allowable limits. Sine'e the Technical Specifications by no means state in explicit and unambiguous terms that the plant must be shut down under such circum-
- stances, Counts 5 and 8 must be sismissed under Kraus if, in-i deed, they purport to charge the Company with a violation un-der such circumstances.
Counts 6, 7, 9 and 10 Counts 6, 7, 9 and 10 are also based on provisions which, if interpreted according to the indictment, w'ould be fatally unclear and ambiguous. Count 6 is purportedly based on the Company's alleged failure to retain records relating to , the RCIB procedure in violation of a license provision requir-ing it to retain records of all surveillance activities re-i quired by the Technical Specifications for a period of at least five years. Since, as demonstrated above, the TMI-2 Technical Specifications only require the performance of an RCIB test once every 72 hours, and there is no allegation that records of such tests were not retained (in fact the NRC has confirmed to the Justice Department that they were), there was 44
no cicar and uncabigusus requirement in the Technical Specifi-
~
cations to retain all RCIB tests, including those which were superfluous in light of the 72-hour requirement, for at least five years. Moreover, since the Technical Specifications do not require (and certainly do not clearly require) that RCIE tests be performed in connection with the determination of un-identified leakage, there is also no explicit and unambiguous requirement to retain RCIB te'st results in that connection. ! Similarly, Count 7 alleges that Appendix B and 10 CFR S 50.71 require the company to retain records of all RCIB tests. However, the regulations make no mention whatsoever of unidentified leakage or RCIB tests and, at most, require the retention of records required by the Technical. Specifications or necessary "to furnish evidence of activities affecting quality." (Appendix B, 1 XVII.) Even if the retention of RCIB test results were clearly req'uired by this language -- which is not the case -- there is certainly no explicit and unambiguous requirement in the regulation that all RCIB test results be retained, particularly in light of the provision in the Technical Specification that only required one RCIB test i I every 72 hours and the Government's admission that records of ! l tests fulfilling this requirement were kept. Since neither the regulations nor the Technical Specifications clearly re-quire that all RCIB test results be retained, Count 7 must be dismissed under the vagueness doctrine. 45 l l
I Count 7 cico cust be disaissed undar tho voguanoss doctrine based on the fact that the reference in Appendix B to
" evidence of activities affecting quality" does not refer ex-plicitly to unidentified leakage and certainly does not refer clearly to RCIB testing, neither of which is mentioned in the 7 )
regulation. Particularly in view of the NRC's regulatory po- l sition, expressed in the Regulatory Guide and the Standard Re- , 4 view Plan, that. sump monitoring and not RCIB testing is the appropriate method of determining unidentified leakage, the vague reference in Appendix B to " evidence of activities af-facting quality" cannot serve as the basis for a criminal prosecution against the Company for allegedly failing to re-
- tain superfluous RCIB test results.
Counts 9 and 10, alleging that Appendix B required the Company to maintain operating logs and identify "deficien- , cies" and "nonconformances" in connection with RCIB testing, i also must be dismissed on the same grounds. With respect to operating logs (Count 9), Appendix B only requires that they be maintained as necessary "to furnish evidence of activities l affecting quality." (Paragraph KVII.) As' established with respect to Count 7, this vague requirement does not clearly l- and unambiguously require that all RCIB test results be in-cluded in such logs, particularly not the results of superflu-ous RCIB test results which were not necessary under the re-quirement in the Technical Specifications of one RCIB test ev-ery 72 hours. Since there is no allegation that test results 46
catisfying tho 72-hsur requircaent core not logged, Count.9
. must be dismissed for vagueness. Similarly, Count 9 must be
\
. dismissed because the vague reference in Appendix B to "evi-dence of activities affecting quality" does not explicitly and l unambiguously refer to RCIB testing, especially in light of the NRC's position that sump monitoring and other methods, but not RCIB testing, are appropriate for measuring unidentified leakage.
Count 10 must also be dismissed. The only reference in Appendix B to " deficiencies" and "nonconformances" is in Paragraph IVI, which provides only that "[m]easures be estab- : lished to assure that conditions adverse to quality" are iden-tified. Count 10 does not allege that such measures were not established. It alleges only that " deficiencies" and "noncon-j formances" in RCIB tests were not identified. Nothing in Ap-pendix B clearly and unambiguously requires such conduct. Moreover, there is certainly nothing in Appendix B which re-quires that deficiencies and nonconformances be identified with respect to superfluous RCIB tests, performed more than once every 72 hours, which the Technical Specifications did not even require. ] Counts 6, 7, 9 and 10 all suffer from an additional infirmity under the vagueness doctrine. All four of those counts allege that the Company failed to maintain certain rec-ords with respect to RCIB tests. However, the Technical Specification which mentions the RCIB test requires that the i 47 1 e ,, <e, ,., - - - - - - - - - - - , .- - - - - , - - , - ,-w,- ,-,.---,.--m.,-,-,.,,,,-_--,,w.,- -
,-. ,--..---mn-- , - . -, , . - -
test be performed at least once every 72 hours "during steady
. state operation." Section 4.4.6.2(d). This means that ini-
)
tial and final conditions of reactor power, reactor coolant systes temperature and pressure, among other things, must re- l main the same throughout the period during which the RCIB test j i is performed in order for the results to be valid.15 Similar- ! j ly, as the gompany's procedure for RCIB testing makes clear, l the performance of various normal plant operations during an RCIB test, such as venting cr draining the reactor coolant system or make-up filters, or changing valve line-ups, will invalidate the result. (SP 2301-3D1, Section 3.1 (Exhibit J).) There is nothing in the regulations cited in the in-dictment or in the Company's Technical Specifications which
- requires (and there is certainly nothing therein which clearly requires) that records be kept of.RCIE tests which were inval-
! 15 Thus, the RCIB procedure provides that:
"3.2 The RCS and make-up system should be i maintained in a steady state condi-i tion during this test. Changes in l valve line-ups, coolers-in-service, i
pumps-in-service, etc. should be avoided. 3.3 For the most accurate determination of the RCS leak rate, the initial and final conditions of reactor pow-er, RCS temperature, pressure and pressurizer level should be identi-cal." (SP 2301-3D1, p. 20.) (Em-phasis added.) 48
.._,.,._._.__m_.
id undar tha Tcchnical Specifications beccuno stcedy stato ep-i eration was not maintained during the test. Keeping records l cf.such invalid results would be akin to a chemist including ; in his records the results of experiments in which he had used the wrong formula or failed to follow the necessary steps to accomplish the experiment. Since the indictment does not al-lege that the Company failed to retain records of valid RCIB tests performed during steady state operations (see Point IV, infra), Counts 6, 7, 9 and 10 must be dismissed on the addi-I tional ground that they do not explicitly and unambiguously apply to invalid RCIB tests taken when the plant was not in a steady state condition. As a corollary to the vagueness doctrine, the Su-i preme Court has consistently held that where there is doubt whether the conduct of the accused falls within a' criminal en-actment, the Court will resolve questions concerning the mean-ing of the enactment "in favor of lenity." Dunn v. United States, supra, 442 U.S. at 112. Thus, the Court stated in Dunn that:
"[T]o ensure that a legislature speaks j with special clarity when marking the boundaries of criminal conduct, courts must decline to impose punishment for ac-tions that are not ' plainly and unmistak-ably' proscribed." 442 U.S. at 112-13 (emphasis added).
Accord, United States v. Beam, 686 F.2d 252, 258 (5th Cir. l 1982); United States v. Fisher, 456 F.2d 1143, 1145 (10th Cir. 1972). 49
Count 11 As demonstrated in Point I, supra, the prohibition ' against concealment contained in Section 1001 does not apply i unless there is an underlying duty to disclose the fact at is- ! sue to a governmental agency. As demonstrated herein, there was no clear duty on the part of the Company to " disclose" to the NRC that the RCIB test was inaccurate and meaningless as a means of measuring 1 GPM of unidentified leakage, particularly in light of the fact that, since 1973, the NRC had been recom-mending other methods, but not the RCIB test, for that pur-pose. Since the Company was under no clear duty to disclose the " fact" alleged in the indictment, Count 11, as well as the preceding counts, must be dismissed. Point III THE INDICTMENT MUST BE DISMISSED FOR FAILURE TO ALLEGE THE NECESSARY ELEMENT OF WILLFULNESS Sections 2272 and 2273 and 18 U.S.C. 5 1001 all ap-ply only to persons guilty of " willful" violations. Since the indictment does not plead this essential element of willful-ness, it is legally insufficient. A. Counts 1 and 2 As used in criminal statutes, " willfulness" entails more than the simple intent to perform an act or not to per- ! form it. Willfullness requires an " evil motive," or a specif-l l ic intent to disobey the law and to accomplish what the stat- l i 50
l uto cond cns. Thus, th3 Suptcme Court hold in Sernws v. Unit- l ed States, 325 U.S. 91 (1945): ,
"We recently pointed out that ' willful' is -
l a word 'of many meanings, its construction l often being influenced by its context.' l At times, as the Court held in United States v. Murdock, 290 U.S. 389, 394, the word denotes an act which is intentional' rather than accidental. .But 'when used in a criminal statute it generally means an , act done with a bad purpose.' In that event something more is required than-the doing of the act proscribed by the stat- ^ ute. An evil motive to accomplish that which the statute condemns becomes a con- ' stituent element of the crime." 325 U.S. at 101 (emphasis added; citations ' omitted). More recently, the Supreme Court in United States v. Pomponio, 429 U.S. 10 (1976) approved a jury instruction de-fining a willful act as one done:
"' voluntarily and intentionally and with the specific intention to do something which the law forbids, that is to say with
[the] bad purpose either to disobey or to disregard the law.'" 429 U.S. at 11. i Similarly, in United States v. Rosenfield, 469 F.2d j 598 (3d Cir. 1972), cert. denied, 411 U.S. 932 (1973), the i Third Circuit held that:
" Ignorance of a crime is no excuse, but ignorance of a duty may be where, as here, wilfulness is an element of the crime."
469 F.2d at 601. In that same case, the court approved a charge to the jury de-fining the element of willfulness as follows:
"' Defendant's conduct is not wilful if he acted through negligence, inadvertence or i
51 H I i
t ristekn, er du, to his ocod inith nisun-derstanding o$ the requirements of the law.'" Id. sEmphasis by the court.) To the same effect, the Eleventh Circuit recently held that:
"When used in a criminal statute 'the word
" willfully" . . . generally connotes a voluntary, intentional violation of a
< known legal duty.'" United States v. Frade, 709 F.2d 1387, 1391 (11th Cir. 1983), quoting United States v. Bishop, 412 U.S. 346, 360 (1973). Accord, Longview Refining Co. v. Shore, 554 F.2d 1006, 1014 (Em. App.), cert. denied, 434 U.S. 836 (1977) ("to establish a I willful overcharge there must be an intentional violation of a j known legal duty, that is to say, to be willful an overcharge j must have been made with the specific intention of charging a price which the defendant knew was in excess of the ceiling ^
' price allowable under the applicable pricing law and regula- l
- tions"); United States v. Mongiello, 442 F. Supp. 835, 838 (E.D. Pa. 1977) ("if the word ' willfully' appears in the stat-y ute, specific intent must be proved beyond a reasonable j doubt").
In an article reviewing the law on willfulness in I the context of criminal prosecutions, a ranking official in the Justice Department recently applied what he considered the highest standard of criminal intent to a category of regula-tory crimes specifically including the violation of NRC regu-lations under 42 U.S.C. 5 2273. Thus, Julian S. Greenspun, Deputy Chief for Litigation in the Criminal Division, wrote 52 s
, , . , , - . , , , - - , - . , , - - - . - . , , ~ . . , , . . , - .
uith respect to such crimes that "the term ' willfully' means 1 that the defendant acted or failed to act with bad purpose, or ! with knowing or reckless disregard of the requirements of the law." Greenspun, Criminal Intent Recuirements and Defenses in ' Regulatory Prosecutions, 1982 Criminal Law Bulletin 293, 295 & n.l. Counts 1 and 2 do not allege " willfulness" as that term has been defined by the Supreme Court and the Third Cir-cuit. First, in order for the alleged violations in Counts 1 and 2 to be willful, the Company, at the very least, must have actually known at the time of the violation that the RCIB pro-cedure did not accurately and meaningfully measure unidenti-fied leakage. Otherwise the Company could not have acted with the " bad purpose" or " evil motive" of violating a known legal duty in continuing to.use that procedure. But the indictment does not allege such knowledge. Rather, the indictment al-leges only that the Company was "on notice" as to deficiencies in the test. Being "on notice" is not equivalent to actual knowledge and cannot satisfy the requirement of willfulness. Since the high degree of mens rea required by the statute is not alleged, Count 1 is legally insufficient. United States
- v. Beard, 414 F.2d 1014, 1015 (3d Cir. 1969) (indictment dis-missed where it alleged a " knowing" violation while statute required " unlawful or fraudulent intent").
The fact that Counts 1 and 2 purport to track the language of Sections 2272 and 2273 by alleging that the Compa-53
ny " willfully pocscsced, uned end operated a utilization fa-
-cility . . . in violation of'the conditions of its license" (Count 1) and "in violation of regulations promulgated by the NRC" (Count 2) is clearly insufficient. Where general statu-tory language is alleged, the indictment must also allege the factual circumstances underlying each element of the offense.
Thus, as the Court stated in Russell v. United States, 369 U.S. 749 (1962):
"'It is an elementary principle of crimi-nal pleading, that where the definition of an offence, whether it be at common law or by statute, " includes generic terms,.it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition; but it must state the species, -- it must descend to particulars."'" 369 U.S. at 765, cuoting United States v. gruikshank, 92 U.S. 542, 558 (1876).
- Accord, United States v. Cecil, 608 F.2d 1294, 1297 (9th Cir.
1979); United States v. Keith, 605 F.2d 462, 464 (9th Cir. 1979); United States v. Abrams, 539 F. Supp. 378, 384-85 (S.D.N.Y. 1982). Since Counts 1 and 2 plead the generic stat-utory language of " willfulness" without specifically alleging ) facts constituting the necessary mens rea, they must be dis-missed. ! l In Nelson v. United States, 406 F.2d 1136 (10th Cir. ! 1969), a conspiracy indictment alleged, in the language of the federal conspiracy statute, 18 U.S.C. S 371, that defendant
" willfully and knowingly" conspired to commit an offense. )
However, in alleging the overt acts which constituted the con-l 54 1 l
spiracy, the indictment omitted the requisite allegations of intent required by the underlying substantive statute. The Court of Appeals held that the defendant's pre-trial' motion to dismiss the indictment for its " failure to properly allege the requisite intent" should have been granted._ 406 F.2d at 1137. As in Nelson, Counts l'and 2 contain the statutory 1 l language of Sections 2272 and 2273. However, according to the l indictment, those sections incorporate and make criminal will-ful violations of various underlying regulations and license provisions. Since, in alleging the acts which constituted the underlying substantive violations, the indictment totally fails to allege willfullnesss, Counts 1 and 2 must be dis-missed.16 j Moreover, even if the generic statutory reference to willfulness were sufficient, which it is not, the allegations l l in Counts 1 and 2 that the Company was only "on notice" that 16 In Nelson, the court required separate allegations of mens rea with respect to both conspiracy and the underly-ing substantive offense. In the present case, of course, the indictment alleges the criminal violation of statutes based entirely on offenses purportedly set forth in li-cense provisions and regulations. Thus, regardless of whether every element of the underlying substantive of-fense must be alleged in a conspiracy case, compare Nel-son with United States v. Manetti, 323 F. Supp. 683, I90 n.15 T57 Del. 1971), an allegation of each of the ele- I ments constituting a violation of the license provisions and regulations relied on by the Government in this case is plainly essential to this indictment. The failure of the indictment to allege willfulness in connection with the acts which allegedly violated those license provi-l sions and regulations therefore requires its dismissal. 1 55 __ _ _ __ -- . - - - . . - - - . .- ., . .- .. ---_.-- . .-__,- D
1 t the RCIB tests did not accurately measure unidentified leakage fatally undercuts the indictment. For example, in United States v. Elliott, 689 F.2d 178 (10th Cir. 1982), the indict- , ment alleged each of the elements of an offense under 15 U.S.C. S 645(a), prohibiting the' making of a materially false statement to the Small Business Administration, by tracking the language of the statute. However, the-facts set forth in the indictment indicated only that a bad check had been pre-sented, which was not a false statement within the meaning of the statute. Despite the inclusion in the indictment of ge-neric statutory language to the effect that a false statement had been made, the Court held that the indictment should have been dismissed under Russell. 689 F.2d at 179-80. Similarly, despite the allegations in Counts 1 and 2 of the generic stat-utory element of willfulness, the facts alleged show that the Company was only "on notice" as to deficiencies in the RCIB test and therefore could not have acted willfully. See United States v. Williams, 478 F.2d 369, 373 (4th Cir. 1973) (jury instruction that defendant should be convicted if he knew or "should have known" that what he was doing was illegal held insufficient to satisfy a requirement of willfulness). Furthermore, Counts 1 and 2 should be dismissed be- ! cause they are, at best, subject to differing interpretations with respect to whether the offenses charged were committed i l willfully. As the court held in Standard Oil company of Texas
- v. United States, 307 F.2d 120 (5th Cir. 1962):
56
"While it is true that indictments are to
.lme construed in a common sense way, where one is subject equally to one of two in-terpretations, one of which states an of-fense and the other which does not, the indictment is insufficient since there is no assurance that the Grand Jury would have returned the indictment had the words been employed in the sense necessary to sustain the convi: tion." 307 F.2d at 130.
Interpreting.the term "on notice" in its usual man-ner, Counts 1 and 2 affirmatively allege that the Company may not have actually known that the RCIB test was an unreliable method of measuring unidentified leak. age. Even if the generic reference to willfulness indicated the opposite, the indict-ment would, at best, be " subject equally to one of two inter-pretations, one of which states an offense and the other of which does not." 307 F.2d at 130. Since there is no way of telling whether the Grand Jury understood Counts 1 and 2 in the manner necessary to sustain the indictment, those counts must be dismissed. Accord, Russell v. United States, suora, 369 U.S. at 765;. United States v. Knox Coal Co., 347 F.2d 33, 37 (3d Cir.), cert. denied, 382 U.S. 904 (1965) ( indic tment - must set forth each element of the offense "without any uncer-tainty or ambiguity"). , l Finally, even if the Government had clearly alleged that the Company knew that the RCIB procedure was meaningless l and inaccurate as a means of identifying unidentified leakage, i it has not alleged that the Company acted with the " bad pur-pose" or " evil intent" of violating a "known legal duty" con-tained in its license or NRC regulations. United States v. 57 l
Pomponio, supra, 429 U.S. at 12. As set forth in Point I, su-ora, the Technical Specifications do not relate the RCIB pro-cedure to the measurement of 1 GPM of unidentified' leakage and are expressly based on the Regulatory Guide which does not recommend the RCIB test for that purpose. Moreover, the regu-lations do not even refer to the RCIB procedure. Thus, in ad-dition to the absence of any substantive violation of the Technical Specifications or regulations, it is clear as a mat-ter of law that, in maintaining the RCIB procedure, the Compa-ny could not have had an intent to violate "a known legal duty," since the Company could not have "known" from the Tech-nical Specifications that an RCIB procedure was required for measuring unidentified leakage; indeed, based on the Technical Specifications, as derived from the Regulatory Guide, it is plain that an RCIB test was not required for that purpose. l B. Counts 3 and 4 Since, as demonstrated above, " willfulness" requires "an evil motive to accomplish that which the statute con-demns,". Screws v. United States, supra, 325 U.S. at 101, or "the intentional violation of a known legal duty," United. States v. Pomponio, supra, 429 U.S. at 12, the Company could j not willfully violate either its license or the regulations as alleged in Counts 3 and 4 unless it knew that, as alleged therein, the license and regulations required it to demon-strate through performance of an RCIB test that unidentified leakage was within acceptable limits. Since, as we have dem-58
onstrated in Points I and II, supra, neither the Technical Specifications nor the regulations appear to contain such a requirement, it would be impossible to prove willfulness on the part of the company. Moreover, the only attempt in Counts 3 and 4 to al-lege willfulness in connection with the performance of any specific act falls far short of the mark. Thus, Counts 3 and 4 allege only that the Company " intentionally" manipulated leak rate tests by the addition of water and hydrogen. Howev- ! er, as the Supreme Court made clear in Screws and confirmed in Pomponio, when used in a criminal statute the term " willful" means n: ore than " intentional." It means an act done with a
" bad purpose" or " evil motive to accomplish that which the 4
statute condemns." 325 U.S. at 101. Thus, an allegation that an act was done intentionally is legally insufficient to sat-isfy the elements of wi11 fulness required in Sections 2272 and 2273.17 17 In addition to the fact that Counts 3 and 4 must be dis-missed on the ground that willfulness is nm, adequately alleged, it is also clear that the allegations that water and hydrogen were added do not even create an inference of evil intent or bad purpose. Water and hydrogen are , added to the reactor coolant system literally more than a l thousand times a year in the course of normal operations. l In fact, they must be added from time to time to achieve i
- and maintain proper operational conditions reguired by .
l I the Technical Specifications, such as pressurizer water level and oxygen level. See the discussion at pp. 79-80, infra. Thus, no inference of bad intent can be drawn from an allegation that sometime during a period of over
- six months, water and hydrogen were added to the system during RCIB tests.
59
\
~
1 l i l 1 C. Counts 5 and 8 The operative facts of Counts 5 and 8 are limited to the allegations that the Company " failed to enter the Action Statement" when the RCIB procedure indicated excessive uniden-tified leakage and " failed" to notify the NRC of that fact. Clearly, a mere " failure" to act, as alleged in Counts 5 and 8, could include a failure through negligence, inadvertence or i mistake (which would not be " willful," under the charge ap-proved in Rosenfield, 469 F.2d at 601) and does not imply the necessary " bad purpose" or " evil intent" to violate "a known legal duty" required for willfulness under the Supreme Court's decisions in Screws and Pomponio. In Standard Oil of Texas v. United States, supra, the indictment charged that the defendants "did fail and ne-i glect" to keep certain records required by law. In striking down the indictment,.the Fifth Circuit held that it was sub-ject to the construction that "the absence of records or their inaccuracies were a result of a simple failure to exercise care and caution in the setting up and maintenance of adequate records. . . . 307 F.2d at 130. Here, too, the allegations in Counts 5 and 8 that the Company, " failed to enter the Ac-tion Statement" and " failed to notify the NRC" are subject to the interpretation that the Company was only guilty of "a sim-ple failure to exercise care and caution," which would be in-sufficient to sustain an indictment for offenses which require
" willfulness."
60
. ~ , _ , . _ _ , , _ - , , , _ , , , - . - , _ _ _ , . _ _ , _ _ , , -,,,.__.,_7.. , _ , , , ..,.,_c.,. ,,...-_-,y _
Willfulness is also precluded by the failure of the Technical Specification to state clearly what the Government. alleges it to mean, as discussed in detail in Points I and II l suora. Counts 5 and 8 must therefore be dismissed not only on the grounds that there was no substantive violation and be-cause of vagueness, but also because, in light of this vague-ness, the Company could not have violated "a known legal duty." D. Counts 6, 7, 9 and 10 Counts 6 and 7 of the indictment charge that the Company " destroyed, discarded, and failed to retain records" relating to the RCIB procedure. Counts 9 and 10 charge that the Company " failed to make and maintain adequate operating logs relating to the conduct of the [RCIB) procedure." (Em-phasis added.) These counts do not adequately allege the ele-l ment of willfulness necessary under Sections 2272 and 2273. Thus, in Standard Oil Company of Texas v. United States, su-pra, the Court held that an indictment charging that defen-dants " failed and neglected" to retain certain records was in-sufficient on the ground that the alleged failure in the in-dictment could be attributable to negligence or inadvertence rather than evil motive:
"[I]f . . . the absence of records or their inaccuracies were the result of a simple failure to exercise care and cau- i tion in the setting up and maintenance of 61
l l adequate records, it would not meet the statutory standard that the regulations were ' knowingly' violated." 307 F.2d at 130. As the Court pointed out in Standard Oil, terms such as " willfully" and " knowingly" preclude "something which is merely careless or negligent or inadvertent." Id. Since this i indictment only alleges a record-keeping failure which may only have been " careless or negligent or inadvertent," these Counts must be dismissed for failure to state an offense. 307 i F.2d at 130-31. E. Count 11 As quoted above, Section 1001 requires that a viola-l l tion be knowing and willful. Interpreting this language, the Third Circuit has " call [ed] attention to the fact that the i
- willfulness element (of Section 1001] requires proof of an evil motive." United States v. Weiler, 385 F.2d 63, 67 (3d Cir. 1967). Similarly, the court stated in United States v.
Schreiber, 449 F. Supp. 856, 864 (W.D. Pa. 1978), aff'd, 559 F.2d 534 (3d Cir.), cert. denied, 444 U.S. 843 (1979), that, l under Section 1001, a defendant cannot be convicted "where i there is mistake, inadvertence or lack of guilty knowledge." The " evil motive" required by the Third Circuit un-der Section 1001 is totally lacking in Count 11. First, there is no allegation that the Company actually knew that the RCIB test was meaningless as a method of measuring unidentified i leakage. Indeed, the indictment read as a whole alleges only i I that the Company was "on notice" as to deficiencies in the 62 \
i l RCIB test. Without actual knowledge that the RCIB test was an ; inaccurate method of detecting and measuring 1 GPM of uniden-tified leakage, there could not have been any " evil motive" to conceal that fact from the NRC. In addition to the absence of an allegation that the Company knew of deficiencies in the RCIB procedure which ren-dered it inaccurate and meaningless to measure 1 GPM of un-identified leakage, there could not have been any " evil mo-tive" on the part of the Company to conceal such deficiencies from the NRC'. In the first place, as demonstrated by the Reg-l ulatory Guide and Standard Review Plan, the NRC already knew that the RCIB test was not one of the appropriate methods for measuring 1 GPM of unidentified leakage. The Company could not have had an'" evil motive" to conceal something from the NRC which it already knew and had publicly indicated. Moreover, there is no allegation that the Company had any stake in the continued use of the RCIB test. Uniden-tified leakage could be accurately measured by the sump moni-toring procedure, which was mandated by the Regulatory Guide and the Technical Specifications, and was already in place at TMI-2, even if the RCIB test were rejected for that purpose by the NRC, the sump monitoring method would continue to be available. Thus, the clear terms of the Regulatory Guide and the Technical Specifications, interpreted in light of the Reg-ulatory Guide, negate as a matter of law any possibility of willfulness. 63 l l l
i Point IV i THE INDICTMENT I5 INSUFFICIENT FOR FAILURE TO ALLEGE ADEQUATELY THE OFFENSES CHARGED A. An Indictment Must Allege All Essential Elements
- ' and Facts of the Offense, Provide Protection Against Double Jeopardy, And Assure The Accused i
Of His Richt to the Intervention of a Grand Jury l It is a fundamental principle of criminal law, based on the Sixth Amendment, that an indictment must adequately in-form the accused of the charges against him.- Thus, Fed. R. Crim. P. 7(c)(1) provides, in pertinent part, that "[t]he in-dictment . . . shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." (Emphasis added.) Here, the indictment is virtual-ly devoid of any of the essential elements and facts consti-tuting the offenses charged, including, among others, such l fundamental facts as the identity of the alleged perpetrators, 4 the date and time of the offense, and the manner in which the alleged acts constituted the offenses charged. As the Supreme Court explained in the leading case of Russell v. United States, 369 U.S. 749 (1962), a clear and i j definite statement of the charges in an indictment is required l not only to enable the defense to prepare adequately for trial but also to provide the accused with certain basic protections
- to which it is constitutionally entitled. In Russell, the Court held that an indictment for failing to answer questions l 1
pertinent to a legislative inquiry was insufficient, where it i alleged the time and place of the hearing and the question 64
i i posed but not the subject under inquiry. The court set forth the standard by which the suf ficiency of an indictment must be judged, as follows:
"In a number of cases the Court has empha-i sized two of the protections which an in-
- dictment is. intended to guarantee, re- ,
flected by two of the criteria by which ' the sufficiency of an indictment is to be measured. These criteria are, first, i whether the indictment 'contains the ele-ments of the offense intended to be charged, "and sufficiently apprises the defendant of what he must be prepared to meet,"' and, secondly, '"in case any other proceedings are taken against him for a i similar offense whether the record shows
; with accuracy to what extent he may plead a former acquittal or conviction." Coch-ran and Sayre v. United States, 157 U.S.
286, 290, 15 S. Ct. 628, 630, 39 L. Ed. 704; Rosen v. United States, 161 U.S. 29, 34, 16 S. Ct. 434, 480, 40 L. Ed. 606.'" 369 U.S. at 763-64, cuoting Hagner v. United States, 285 U.S. 427, 431 (1932). In addition to requiring a clear and definite state-l ment in the indictment of the essential elements and facts to , I enable the defendant to prepare his defense and to ensure l i ^ against double jeopardy, the Court held in Russell that the failure to provide such a statement deprives the defendant of the fundamental safeguard that he will be tried only on those charges which have been submitted to and approved by a grand jury. Thus, the Court held that:
"To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive 65
the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perha'as not even presented to the grand jury wsich indicted Tim." 369 U.S. at 770 (emphasis added). I Accord, Stirone v. United States, 361 U.S. 212, 218 (1960) ("The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either i prosecuting attorney or judge"); Ex Parte Bain, 121 U.S. 1, 9-10 (1887); United States v. Goldstein, 502 F.2d 526, 529 (3d Cir. 1974); United States v. Cecil, 608 F.2d 1294, 1296 (9th l Cir. 1979). The indictment is brought by the grand jury, not the prosecutor. The prosecutor may not. alter the basic nature of the indictment, but at most may supply the details if the es-sential elements of the offense have been charged by the grand jury. Where, as here, the indictment is so vague that it fails to identify the essential elements of the offense, so that the defendant does not know what it is accused of, it iu possible for prosecution:
"to obtain a conviction based wholly on evidence of an incident completely di-vorced from that upon which the grand jury based its indictment. The prosecution may not have the power to ' roam at large' in this fashion." United States v. Toma-setta, 429 F.2d 978, 980 (1st Cir! IY70).
Moreover, in the Supreme Court's opinion in Russell, ! Justice Stewart emphasized that a vague indictment may cause a 66
great disparity not only between what the grand jury intended and what the indictment charged, but also between the charges in the indictment, the issues tried by the court, and the i questions presented on appeal: . "A cryptic form of indictment in cases of l this kind requires the defendant to go to trial with the chief issue undefined. It -- enables his conviction to rest on one i coint and the affirmance of the conviction to rest on another. It gives the Drosecu-tion free hand on aDDeal to fill in the i caos of Droof by surmise or coniecture." 369 U.S. at 766 (emphasis added). Given the requirement that the allegations in an in-i dictment such as this must be set forth with reasonable par-ticularity, a mere repetition of statutory language in the in-f dictment, with little or no additional elaboration, is insuf-ficient. As the Court held in Russell: j "Where guilt depends so crucially upon a l specific identification of fact, our cases
! have uniformly held that an indictment must do more than simply repeat the lan-
- guage of the criminal statute.
'It is an elementary principle of l criminal pleading, that where the defini- l l tion of an offence, whether it be at com- )
mon law or by statute, " includes generic terms, it is not sufficient that the in-dictment shall charge the offence in the same generic terms as in the definition; d but it must state the species -- it must descend to particulars."' An indictment not framed to apprise the defendant with ' i reasonable certainty, of the nature of the accusation against him * *
- is defective, i
although it may follow the language of the statute.'" 369 U.S. at 764-65 (citations omitted). 67 y - - -
-m r*-e------+e---w-w-+-ee-. .Mr-+- -+-w-4e-----~+&wrv+----y-------ws-e,ww e r- - - - - ---,ew-- e- ------w---- --w- - - - - + -m---w-
-- = -
t 1 l l Accord, United States v. Thomas, 444 F.2d 919, 921-22 (D.C. . : Cir. 1971) (burglary indictment held insufficient because it ! failed to allege intent to commit a particular offense after ; illegal en.try); United States v. Cecil, suora, 608 F.2d at 1297 (indictment which tracks statutory language is neverthe-L less insufficient "if it fails to allege an essential element of the offense or the minimum facts required to fulfill the a purposes of indictments"); United States v. Keith, 605 F.2d 462, 464 (9th Cir. 1979) (to be valid, indictment which tracks statute must still adequately allege all essential elements); United States v. Abrams, 539 F. Supp. 378, 384-85 (S.D.N.Y. 1982) (indictment which tracked statute held insufficient for failure to set forth in detail time and place of alleged of-fense). i Moreover, in cases involving a complex statutory scheme -- such as the highly technical set of statutes, regu-lations, and license provisions at issue here -- it i s " espe-cially necessary" that the facts and circumstances of the al-leged crime be set forth with particularity in the indictment. ( Van Liew v. United States, 321 F.2d 664, 674 (5th Cir. 1963). j By any measure, this indictment fails to allege of- .i l fenses with the specificity required by the applicable Supreme l i Court authority set forth above. Without such particularized allegations, the vague language of this indictment creates the very real danger that the grand jury had in mind one set of 68 4e,.yy---_m----o-n--,po_-n--wy,--o y y.q. pr, , - m.w, m3n-,-se..,g g,..sn-- 9mm--,._y- --,,sweas,---,,.y,- -n,4a-,-, m m.g--,y4 ._oam---774 -wy-m,w-ngpr,n.p yw on g--
facts, the indictment is based on another set, and the trial
- and appeal will concern yet other facts and charges.
As discussed in further detail in subpoint C, infra, j with respect to each of the Counts, the indictment is based largely on the performance of tests, the compilation of rec-
~
! ords and logs and other everyday activities in the normal I course of operating a nuclear plant, which were the responsi-bility, on a frequent basis and at various times, of scores of
- different Company employees during the open-ended period cov-4 ered by the indictment. Given the absence from this indict-ment of any allegations as to which of these employees commit-l ted the alleged offenses, when the offenses were committed and 4
the manner in which they were committed, the Government could
- have introduced certain evidence before the grand jury, and
- could then, at trial, choose to present entirely different ev-idence, never presented to the grand jury or on which the i
grand jury did not vote to indict, of another employee having l committed an offense on a different occasion and in a differ- ! ent manner. In these circumstances, the defendant could "be convicted on the basis of facts not found by, and perhaps not l even presented to the grand jury which indicted him." Rus-t sell, supra, 369 U.S. at 770. Defendant is also thereby de-l ! nied the vital safeguard against double jeopardy which an in-dictment is intended to guarantee, for the vagueness of these charges prevents defendant from knowing to what extent it may i j plead a judgment resulting from this case as a bar against any l 1 I l 69 1 l
-~P **- - * -++-r v+ey --w-m y+---g9Tw---- -y r- u.-*-y -- -
1 l future prosecutions for similar alleged violations. Id. at 764. In addition, the indictment totally fails to serve the purpose, mandated by the Supreme Court in Russell, of appris-ing the defendant of the essential facts of the offense with which it is charged so that it may prepare its defense. Unit-ed States v. Hinkle, 637 F.2d 1154, 1158 (7th Cir. 1981). In addition, the indictment is also fatally defi- . cient for the separate and independent reason that it fails to set forth all of the elements of the alleged offenses. It is a basic principle that an indictment must contain all of the
" elements of the offense intended to be charged." Russell, supra, 369 U.S. at 763; United States v. Manuszak, 234 F.2d 421, 423 (3d Cir. 1956); United States v. Keith, suora, 605 F.2d at 464. Few of the " elements" of the offenses charged in this indictment are contained in the cited statutes; for the most part those elements allegedly derive from the regula-tions, license provisions, and technical specifications which are intended to define the actions required of the company in operating its plant. Since the indictment fails to allege all of the essential elements of the offenses as required by those provisions it is clearly insufficient and must therefore be dismissed. Moreover, the indictment must also be dismissed because it fails to specify which of the regulations, license provisions or technical specifications were allegedly violat-ed, and therefore there can be no assurance that all of the 70
essential elements under those provisions were made known to and were considered by the grand jury. B. A Bill of Particulars Cannot Cure the Deficiencies in this Indictment Based on the defendant's constitutional right to "the intervention of a grand jury," which requires the assur-ance that the charges on which he is tried are the same as those on which the grand jury indicted, "it is a settled rule that a bill of par-ticulars cannot save an invalid indict-ment." Russell, supra, 396 U.S. at 770. Thus, the Court in Russell rejected the Government's argument that a bill of particulars could be used to fill in the gap in the indictment.18 -t Similarly, in United States v. Cecil, supra, the Court explained that the very purpose of the grand jury would be defeated if the prosecutor were allowed, by filing a bill of particulars, to supply essential elements which were miss-ing in the indictment brought by the grand jury:
"If a bill of particulars were allowed to save an insufficient indictment, the role of the grand jury as intervenor would be circumvented. Rather than the assurance that a body of fellow citizens had as-sessed the facts and determined that an individual should face prosecution, the prosecutor would be in a position to sec-ond guess what actually happened within l
18 Defendant's motion for a bill of particulars has been filed at the same time as this Motion solely because this l Court's Order requires that particulars be requested now. - Even if the Court were to grant all particulars sought, that cannot save the indictment. ) 71 1
-_.--.I
. =. .
the grand jury and fill in the gaps with '- what he assumed. transpired. The protec-tion of a significant check on the power of the courts and prosecutors would thus be lost." 608 F.2d at 1296. Accord, United States v. Keith, supra, 605 F.2d at 464; United ; States v. Thomas, 444 F.2d 919, 922 (D.C. Cir. 1971); United i States v. Tomasetta, 429 F.2d 978, 980 (1st Cir. 1970); van Liew v. United States, 321 F.2d 664, 673-74 (5th Cir. 1963); United States v. Agone, 302 F. Supp. 1258, 1262 (S.D.N.Y. 1969). As the above cases demonstrate, while a bill of par-ticulars may be used to fill in certain details when the in-l
; dictment clearly charges a particular offense, such as where an indictment charges a defendant with murdering a named indi-vidual but does not state where the murder took place, it may not be used to rewrite or amend the indictment when it is not clear what the conduct is that allegedly constituted the crime.
! This is not a case where the essential facts sur-rounding an alleged offense are stated in the indictment, and only relatively minor details are omitted. Without definite - allegations that a specific employee of the Company, while i performing a test or compiling a record on a certain day, al-legedly committed a particular act with the necessary intent which violated a specific requirement, the Company simply does not know what offense is being charged, and there is no assur-ance that the grand jury indicted for the same offense that is 1 72 . - . . - c ,,. , ,,, , , _ , , ,._,,,-___---._,,,-,,--.__-.r-, ....m_.w.,,__.,.,___-,__e ....._ , w ..,_.-,-,.,.....~.._..-.-c _. ..-..-_m ,_, . - -,
being tried. Under such circumstances, the " evidentiary de-tail" which a bill of particulars can provide is not enough to save the indictment. van Liew, suora, 321 F.2d at 673. C. The Indictment Fails to Adequately Allege i the Facts and Elements of the Offense Charged ! Counts 1 and 2 Counts 1 and 2 allege that the Company violated the conditions of its license (Count 1) and 10 C.F.R. Part 50
- (Count 2) because it '
i "was on notice that its procedure for the
. reactor coolant system water inventory 4
balance did not accurately and meaningful-- ly measure the amount of unidentified re-actor coolant leakage. Despite such.no-tice, the defendant company continued to use such inaccurate and meaningless proce-dure in an effort to generate results J which appeared to establish that reactor coolant leakage was within allowable lim-its." These Counts fail to satisfy the Russell standard in ] several critical respects. First, the indictment fails to set - forth the name of the individual (s) who allegedly were "on no-tice" that the procedure in question was not accurate and j meaningful, or to specify the manner in which the person or I persons supposedly became "on notice." Since the indictment merely states that "the defendant company" was on notice, Met-Ed has no way of knowing which person or persons in its employ allegedly were "on notice" that the RCIB test was inaccurate and meaningless, or any details regarding the facts which al-legedly put such person or persons on notice. The indictment also fails to inform the Company of which person or persons, 73
+
i who allegedly were "on notice" as to the inadequacies of the test, " continued to use" the procedure "in an effort to gener-c ate" test results. The courts have frequently dismissed indictments which failed to identify the victim of the alleged offense. E2 3., United States v. Tomasetta, 429 F.2d 978, 979-81 (1st Cir. 1970); United States v. Abrams, supra, 539 F. Supp. at
- 385; United States v. Agone, 302 F. Supp. 1258, 1260 (S.D.N.Y.
1969). Since, as these cases hold, it is a fatal insufficien-4 cy for an indictment not to name the victim of the alleged crime, an indictment which does not even identify the person 4 4 who committed the alleged offense is even more clearly insuf-ficient. Failure to name the individuals who allegedly com-mitted the acts charged in the indictment is a particularly j serious defect in a case such as this, where the defendant is . I a large corporation which can only act through its employees. As the Government has not specified which of the Company's many employees, in the course of performing tests, compiling records and performing other frequent, everyday functions re-
- quired during plant operations, allegedly committed acts which 1
subject the Company to criminal responsibility, defendant is denied the crucial protection against double jeopardy which an indictment must afford, for it could subsequently be charged l on the basis of similar acts allegedly committed by other em-ployees without knowing "'with accuracy to what extent (it] 74 1
- , , , , _ _ _ _ . , _ . . . , , _ _ _ . . _ _ . . . - . . _ _ _ , _ . , _ . _ _ _ _ . _ _ _ _ _ _ _ . _ . . _ _ _ _ _ _ _ _ , _ , _ . . _ _ _ _ . . _ - _ . _ _ _ _ _ _ _ _ _ . _ _ . . ~ _ . .
may plead a former acquittal or conviction.'" . Russell, supra, 369 U.S. at 764. Without such knowledge, the company is also unable to prepare an effective defense, for it cannot be sure what proof will be introduced at trial and which witnesses will be required. .Moreover, the failure to identify any spe-cific employees is an especially critical insufficiency be-cause it raises the possibility that the grand jury may have indicted thinking that one employee may have committed an of-fense, only to have the prosecutor try the case on the basis that someone else was the alleged perpetrator, perhaps at a different time and in a different manner. i Counts 1 and 2 also fail to specify with any degree ] of precision the dates when the person or persons in question , allegedly became "on notice," saying only that that occurred
"(bleginning sometime prior to October 18, 1978 . . . and con-tinuing up to and including March 28, 1979. . . .
Since there is not even a definite starting date for the alleged of- l fense, the Company is being required by the prosecution to de-I fend itself against the charge that one or more of its employ-ees, who at an unknown time and in some unspecified manner be-i came "on notice" that the RCIB test was allegedly " inaccurate and meaningless," thereafter used the procedure "in an effort to generate' results." Since the RCIB test was performed at least once every 72 hours, as required by the Technical Speci-fications, the Company obviously has no way of knowing to which tests the indictment is referring. 75
'l
- The impossibility of preparing an effective defense.
to such a nebulous charge is self-evident, and federal courts j l have repeatedly dismissed such indictments for insuf ficiency. As the Supreme Court held in the oft-cited case of United States v. Cruikshank, 92 U.S. 542, 558 (1876):
"The object of the indictment is, first, to furnish the accused with such a de-scription of the charge against him as will enable him to make his defence, and i
avail himself of his conviction or acquit-1 tal for protection against a further pros-ecution for the same cause; and, second, l to inform the court of the facts alleged, l so that it may decide whether they are i sufficient in law to support a conviction, I if one should be had. For this, facts are to be stated not conclusions of law A crkme is made up of acts and in-alone. tent; and these must be set forth in the indictment, with reasonable particularity l of time, place, and circumstances." (Em-phasis added.) A vague allegation that certain offenses took place l at some point during a long period of time fails to meet the standard of " reasonable particularity of time, place, and cir-l I cumstances." Thus, in United States v. Abrams, supra, the l court dismissed counts of an indictment which alleged that the ! offenses occurred during nine and 24-month periods, noting that the counts in question " state no more than the ' time and ! l place in approximate terms' and the scope of that approxima-tion is broad indeed. We find this is not sufficient under ) the Fifth Amendment." 539 F. Supp. at 386. Here, the indict-f ment is completely open-ended, for it not only fails to speci-fy a particular date on which any of the alleged acts took i 76 I
_ - ._. . .. . - - -- ~. - place, but states that such acts may have been committed dur-ing an indefinite-time beginning orior to October 18, 1978 and extending to March 29, 1979.19
' United States v. Hinkle, supra, is also on point.
) In Hinkle, the court found that, although specific dates were l mentioned in the indictment, the times of the alleged offenses nevertheless lacked particularity: j "Furthermore, the indictment's specifica-tion of the date on which' appellant alleg-i edly used the phone in violation of 21 i U.S.C. S 843(b) adds little if anything to her knowledge of the charges against her, given the frequency with which most people use the telephone during any one day." 637 F.2d at 1158. f Here, the indictment is even more clearly deficient than in 4 j Hinkle, for none of the counts even lists specific dates when I ! the offenses were allegedly committed, let alone the particu- ) j lar time of day. See United States v. Cecil, suora, 608 F.2d I 19 It should be noted that on October 14, 1983 defendant Metropolitan Edison, at the request of the Government, i waived for 90 days the statute of limitations. This ! waiver did not operate to extend the limitations period with respect to events that took place prior to October 14, 1978. Thus, the allegations in the indictment of events "beginning sometime prior to October 18, 1978" may well constitute a charge barred by the statute of limita-l 4 tions. 18 U.S.C. S 3282. Since the indictment is unduly l j vague in this regard, it should be dismissed on the i ground that the grand jury may have voted the indictment based on events which took place beyond the limitations period. In any event, defendant reserves its right to i address this issue further at such time as discovery, a bill of particulars, or evidence adduced at trial clari-fies the question of the date or dates on which the al-leged offenses took place.- , 77
i t at 1297 (indictment defective because, inter alia, it " fails to place the conspiracies within any time frame" and is "open- - ended in both directions"). l Furthermore, Counts 1 and 2 fail to specify the li-conse provision and regulation which were allegedly violated. As demonstrated in Poi'nt I, supra, contrary to the allegations. in Counts 1 and 2, the company's Technical Specifications, based on the NRC's regulatory position set forth in its Regu-latory Guide, did not require the RCIB test in connection with ! the measurement of unidentified leakage. Moreover, there is no provision anywhere that we know of in the license, Techni-l cal Specifications, or regulations that refers to an " accurate l and meaningful" RCIB test or that makes clear what degree of accuracy and meaningfulness is required and for what' purpose. i Under these circumstances, where the elements of the offense ! are not in the criminal statutes cited, it is incumbent on the I Government to make clear in the indictment what specific li-cense or regulatory provision it claims was violated, in order to ensure that the elements of the offense as required by the relevant legal provision have been presented to the grand jury ; and were found by the grand jury to have been satisfied by the ; alleged conduct. Since the indictment refers to no specific license provision and only to a lengthy 18 paragraph regula- , tion (10 CFR Part 50, Appendix B), each of which contains nu-l merous requirements none of which appear to be applicable, l l Counts 1 and 2 must be dismissed. 78
-y-,---,--ww--------w.+.m.-ww-------- ---e-v.~,,--, , . rey---- ,--ve-,.-----r-, -,,--~~~--r--e-- . +---- ..- ,..*n -,-r--- -- . + , .,--we.-% w,-+-- ,,-- v+--
I counts 3 and 4 Counts 3 and 4 are predicated on allegations that hydrogen and water were added to the reactor coolant system, which the indictment charges was done in order to generate , test results which appeared to, but did not in fact, fulfill the Company's license requirements. There is no question that water and hydrogen are and must be added to the reactor cool- , ant system from time to time to achieve and maintain proper operational conditions required by the Technical Specifica-tions.20 Thus, with respect to water, more than a thousand additions were plainly logged in the Company's records, in-cluding many duly logged additions during leak rate tests which would not have adversely affected the accuracy of such tests. Accordingly, to meet the Russell standard, particular-ly as applied in Hinkle, it was essential that the indictment specify which of these frequent water additions allegedly re-l 20 For example, Technical Specifications 3/4.1.1.1 and i 3/4.1.1.2 plainly require both water and boric acid addi-tions to, and removals from, the RCS in order to achieve ; the necessary increases and decreases in boron concentra- ! Also, Technical Specifications 3.4.4 and 4.4.4 re- I tion. quire that RCS inventory be maintained within certain ! limits, thereby necessitating the addition of water to the reactor coolant system any time that coolant is re- i moved for boron control or when identified leakage causes I a reduction in RCS inventory. Technical Specification j 3.4.7 requires that oxygen concentration in the RCS be maintained below 0.1 ppm, and since the formation of oxy-gen by the radiolytic decomposition of water is prevented by hydrogen dissolved in the reactor coolant, hydrogen additions to the RCS are necessary in order to maintain hydrogen concentration at or above the desired minimum level. 79 l
l i sulted in the manipulation of RCIB_ tests and the generation of erroneous results. Especially in light of the facts that there are three shifts per day, each with four or more opera-tors, fore, men, or supervisors, and that different operators are assigned to surveillance testing and plant operation (in-l cluding the necessary additions of water and hydrogen), it was critical for the indictment to have identified the individual employee who allegedly committed each relevant act with the requisite intent. With regard to hydrogen, no regulation or license provision of which we are aware (and the indictment cites none) prohibits the addition of hydrogen during an RCIB test. Here, again, it was essential for the indictment to have pro-vided the date, time, and individuals involved in any hydrogen additions that allegedly violated the Company's license or NRC j Regulations. l Given the frequency of RCIB testing, and the open-ended period covered by the indictment, there is no way for the Company to link any allegedly misleading results caused by the addition of hydrogen or water -- which may have been re- ! corded in test data or in hundreds of pages of written logs and strip charts, or which may have been inadvertently omitted from such data -- without being informed by the indictment of , the specific employees who made the alleged additions and the l times at which such additions were made. Without alleging such essential elements and facts, the indictment fails to ap-i 80 1
prise the company of the conduct allegedly constituting the l offense being charged and creates the risk that the grand jury may have voted the indictment based on evidence of conduct ; i I other than the conduct on which the prosecutor will ultimately attempt to try the case. Especially since, in the regular course of operating a nuclear plant, the addition of hydrogen or water to the make-up tank is a frequent and innocent activ-ity -- indeed, a required and necessary activity under the Technical Specifications discussed above -- Counts 3 and 4 are plainly insufficient under the Russell requirements, particu-larly as applied in Hinkle. Finally, as with Counts 1 and 2, Counts 3 and 4 al-lege that unspecified provisions of the company's license and of Appendix B required it to demonstrate through performance of an RCIB procedure that unidentified leakage was within al-lowable limits. Since nothing in the license or Appendix B ! appears to require any such thing, the indictment's failure to specify the provision which the Government contends is appli- _ cable renders it fatally insufficient. Counts 5 and 8 Count 5 alleges that the defendant company failed to enter the Action Statement when the reactor coolant system water inventory balance procedure indicated that reactor cool- i E ant leakage from unidentified sources exceeded one-gallon per I minute,"andCountBallegesthdttheCompanyfaile,itonotify i the NRC when it did not "entertheActionStagement." Again, e 81 1 1 W
,., y - - - . - -
-,,_r_ , - . _ , , _ . , _ -. ,.
the language of these counts does not apprise.the Company of the dates on which the " indicated" leak rate allegedly exceed-ed 1 GPM and on which of those dates the Company allegedly failed to take the required action. In addition, these counts are fatally vague as to what conduct the Company allegedly failed to engage in when it did not " enter the Action Statement," since that phrase is neither used in the regulations and Technical Specifications nor defined in the indictment. Technical Specification 3.4.6.2 states that several actions are to be taken in se-quence if reactor coolant system leakage is greater than the applicable limit. The Technical Specification requires that if the leakage rate is not reduced "to within limits within 4 hours," the reactor is to be "in at least HOT STANDBY within the next 6 hours," and in " COLD STANDBY within the following 30 hours." Count 5 simply does not tell the Company how, if at all, these requirements of the Technical Specification were not fulfilled -- whether, for example, the leak rate was not reduced at any time within the ten-hour period before the re-quirement to go into hot standby; whether it was not reduced after four hours but was reduced within the next six, in which case, as demonstrated in Point II, supra, there was, in fact, no requirement to proceed further with the stated actions; and whether, before having to go into hot standby, the operators determined by taking another RCIB test or through some other means that unidentified leakage was within allowable limits, 82
and therefore did not proceed with the action, which also would not constitute a violation of any clear and unambiguous requirement in the Technical Specifications. ' Since the indictment fails to specify the actions allegedly taken or not taken by the operators and also does not specify the time of the alleged violation, the Company cannot tell from the indictment wha,t the offense with which it is charged allegedly consisted of; nor can it be determined from the indictment whether the conduct which the grand jury I had in mind when it voted these counts actually constitutes an orfense as a matter of law. An indictment may not allege facts which require the defendant to guess which, of several alternatives, is the theory under which it is being charged with an offense. United States v. Agone, supra, 302 F. Supp. at 1260. Counts 5 and 8 must therefore be dismissed. d# Counts 6 and 7 Counts 6 and 7 allege that the Company failed to re-tain records relating to the RCIB procedure required by the Technical Specifications. Here, as well, there is a glaring lack of information about the specific offense which is being alleged. Most fundamentally, these counts do not state on which occasions records relating to the RCIB procedure were discarded when they allegedly were required to be retained. Since, as set forth in Point I, supra, the applicable regula-tions and license provisions did not require the retention of jr all RCIB test results (superfluous tests taken more than once 83
per 72 hours and invalid results obtained while the plant was not at steady state or as the result of operator error were not required to be retained), it is essential for the indict-ment to have stated the time and circumstances under which re-c'!rds allegedly were not retained, in order to enable the Com-pany to prepare its defense and to ensure that the grand jury voted Counts 6 and 7 based on evidence of conduct that consti-tuted an offense as a matter of law. Count 9 Count 9 states that the Company violated NRC Regula-tions by failing to maintain adequate operating logs relating to the conduct of RCIB tests. Given the fact that the Company retained the results of RCIB tests taken every 72 hours in ac-cordance with the Technical Specifications, it is unclear what data was allegedly required to be logged or when the Company allegedly failed to make such logs or entries. It is also un-clear if the indictment is alleging that all test results, even those which were superfluous or clearly invalid, were re-quired to be logged, in which case the indictment fails to state an offense for the reasons set forth in Point II, supra. Moreover, Count 9 fails to specify which of the pro-visions of 10 C.F.R. Part 50, Appendix B were allegedly vio-lated, and appears not to state the elements required for a violation of that lengthy and complicated regulation. Appen-dix B refers to the maintenance of operating logs in the con-text of records sufficient "to furnish evidence of activities 84
affecting quality." There is no allegation in Count 9 of the critical element that such records were not kept. The bare allegation that the Company failed to maintain adequate oper-ating logs relating to the RCIB procedure is therefore insuf-ficient and requires dismissal of Count 9. Count 10 Count 10 alleges that the Company failed to make en-tries identifying deficiencies and non-conformances in connec- l l tion with RCIB tests. As in the case of Count 9, the indict-ment fails to specify the occasions on which s'uch entries were allegedly not made and also does not make clear-whether it is alleging that such entries were required with respect to all RCIB test results, including those which were superfluous or clearly invalid. Since such an allegation would require dis-missal of the Count for failure to state an offense, see Point II, supra, it is impossible to tell from the indictment wheth-er the grand jury voted on this Count based on facts which are sufficient as a matter of law to constitute the offense charged. Moreover, again as with respect to Count 9, Count 10 fails to specify the regulatory provision which was allegedly violated and appears not to state the necessary elements of any such violation. The only reference in Appendix B to the identification of deficiencies and non-conformances is in the context of the requirement that measures be established to as-sure identification of " conditions adverse to quality." Since
- 85
Count 10 fails to allege the key element that the Company failed to establish measures to assure that conditions adverse to quality were identified, Count 10 does not allege the nec-essary elements of an offense and must therefore be dismissed. Count 11 The final Count in the indictment alleges that the Company concealed from the NRC by a " trick, scheme, or device" the fact that the RCIB procedure did not accurately measure unidentified leakage at TMI-2, in violation of 18 U.S.C. S 1001. That Section provides, in relevant.part, as follows:
"Whoever, in any matter within the juris-diction of any department or agency of the United States knowingly and willfully fal-sifies, conceals or covers up by any trick, scheme, or device a material fact
. . ., shall be fined not more than
$10,000 or imprisoned not more than five years, or both."
Count 11 contains no allegations as to the conduct which allegedly constituted the " trick, scheme, or device" by which any material fact was concealed from the NRC. The ab-sence of such allegations is fatal to a Section 1001 indict-ment and requires dismissal. United States v. Heinze, 361 F. Supp. 46, 66 (D. Del. 1973). In Heinze, as here, the indict-ment tracked the language of Section 1001 without setting forth specific acts which constituted the alleged " trick, scheme, or device" by which material facts were concealed. In dismissing the indictment, the court held:
"Since a reading of Count 1 of the indict-ment fails to adequately apprise the de-86
fendants of the particular conduct charged as violative of 5 1001 and leaves the mat-ter entirely to speculation, charging Paragraph 2(c) will be dismissed." 361 F. Supp. at 55 (emphasis added). United States v. Harris, 217 F. Supp. 86 (M.D. Ga. 1962), and United States v. Devine's Milk Laboratories, Inc., 179 F. Supp. 799 (D. Mass. 1960), are to the same effect. In both of those cases, an indictment under Section 1001 was dis-missed because, as stated in Harris, it failed to set forth a
"' statement of essential facts' showing (1) any concealment or covering up, or (2) any trick, scheme or device." 217 F.
Supp. at 87. As the Court held in United States v. Devine's Milk Laboratories, Inc., supra:
"An indictment in the language of the
[S 1001) statute is not necessarily good.
. . . [T]he crime . . . should at least be described with sufficient particularity to enable the defendants to know what spe-cific offenses they are charged with. . . . 179 F. Supp. at 800-01.
Here, as in the cases cited above, Count 11 " fails to adequately apprise the [ Company] of the particular conduct charged as violative of Section 1001 and leaves the matter en-tirely to speculation." Heinze, supra, 361 F. Supp. at 55. . The charge under Section 1001 must, therefore, be dismissed. 87
Point V SECTIONS 2131 AND 2272 OF TITLE 42 DO NOT APPLY TO THE PURPORTED LICENSE VIOLATIONS ALLEGED IN THE INDICTMENT Counts 1, 3, 5, 6 and 8 of the indictment are pur-portedly based on the Company's alleged violations of the pro- - visions of its license to operate TMI-2. With respect to each I of these five counts, the indictment states that the alleged license violations violated Sections 2131 and 2272 of Title
- 42. As we shall demonstrate, both the language and legisla-i tive history of these provisions show clearly that it was not i the intent of Congress to transform any violation of a provi-sion in a license to operate a nuclear plant, or a document allegedly incorporated in such a license, into a major felony subject to the severe sanctions provided for in Sections 2131 and 2272.
A. The Legislative History of the Act Establishes that Sections 2131 and 2272 Were Not Intended to Apply to License Violations Section 101 of the Atomic Energy Act of 1954 ("the Act"), as amended in 1956, 42 U.S.C. 5 2131, provides as fol-lows:
"It shall be unlawful, except as provided in section 2121 of this title, for any person within the United States to trans-fer or receive in interstate commerce, manufacture, produce, transfer, acquire, possess, use, import, or export any utili-zation or production facility except under and in accordance with a license issued by the Commission pursuant to section 2133 or 2134 of this title."
88
i M E
-ihi Section 222 of the Act, 42 U.S.C. 5 2272, makes -
r a criminal any willful violation of Section 2131 and certain -l
=E" other specified Sections of the Act, as follows: 2e "Whoever willfully violates, attempts to 5 violate, or conspires to violate, any pro- g-x vision of sections 2077, 2122, or 2131 of g this title, or whoever unlawfully inter- -y feres, attempts to interfere, or conspires ~~
b:- to interfere with any recapture or entry -- under section 2138 of this title, shall, upon conviction thereof, be punished by a
=
fine of not more than $10,000 or by im- N prisonment for not more than ten years, or i_. both, except that whoever commits such an - offense with intent to injure the United States or with intent to secure an advan-O g
,}
tage to any foreign nation shall, upon + L L conviction thereof, be punished by impris-
=
g onment for life, or by imprisonment for any term of years or a fine of not more :ti { than $20,000 or both."
-{
( As explained in the Senate Report on the Act, the E L 2 [ purpose of Section 101 (42 U.S.C. S 2131) was as follows: g -_- - E "Section 101 contains a prohibition
- against having or dealing with any utili- M zation facility except pursuant to a li- 3 E
cense issued by the Commission." No. 1699, 83d Cong., 2d Sess., reprinted S. Rep. g E in [1954] U.S. Code Cong, & Ad. News 3456, =555 6 7474. m
~
h In 1956, Section 101 was amended to add a prohibi-3 u tion against the "use" of a utilization or production facility Q m without a license. The Atomic Energy Commission, in a letter
.-T g
p appended to the Senate Report on the 1956 amendment, expressed a } its reservations as to the addition of the word "use" to Sec- g N tion 101 on the ground that it "would seem to expand very sub-L 321E stantially the applicability of Section 222 [42 U.S.C. 5 2272]." S. Rep. No. 2530, 84th Cong., 2d Sess., reprinted -M M 89 s =s M = S . . . . . Y
in [1956] U.S. Cong. & Ad. News 4426, 4433. In particular, the Commission was concerned that "if a facility licensee were to use a fa-cility in any manner constituting a viola-tion of any of the Commission's regula-tions, the effect of the proposed amend-ment would seem to make the violation an < offense under section 222."
~
In adding the word "use" to Section 2131, Congress clearly rejected the idea that such an addition would greatly expand the applicability of the criminal provisions of Section 2272. To the contrary, Congress took the position that the addition of the word "use" was only a " perfecting amendment" which would make clear that use of a production or utiliza-tional facility without a license was prohibited. Thus, the Senate Report on the 1956 amendment states:
" Sections 11 and 12 make perfecti.ng amend-ments to sections 101 and 103 of the Atom-ic Energy Act of 1954, by addinguse' as one of the activities for which facilities '
license is required. This has been im-plicit in the language and operation of the statute." S. Rep. No. 2530, supra, [1956] U.S. Code Cong. & Ad. News at 4428. Similarly, in explaining the bill containing the 1956 amendments, which inserted the word "use" into Section ~ 101 of the Act, the Chairman of the Joint Committee on Atomic Energy, Senator Clinton P. Anderson, stated as follows:
"Mr. President, with reference to the bill on which the distinguished majority leader asked for an explanation, I wish to say that the bill contains 14 sections, none 90
of which is extremely important in itself, but each one of which deals with some mi-nor problem which needs attention in the operations of the Atomic Energy Commis-ston." 102 Cong. Rec. 13225 (July 18, 1956). The Senate Report also states in introducing the bill that:
"This bill takes care of many minor prob-lems on which it has been found necessary or desirable to have legislative action in order to clear up minor points of diffi-culties in the operations of the Atomic Energy Commission." 5. Rep. No. 2530, supra, [1956] U.S. Code Cong. & Ad. News at 4426.
In passing this " perfecting amendment," designed to deal "with some minor problem" in the Commission's operations, it is inconceivable that Congress intended to expand radically the reach of the criminal provisions of 42 U.S.C. S 2272 to include any violation by a utility of its operating license. More recently, Congress again indicated its under-standing that the 1956 amendment adding the word "use" to Sec-tion 2131 did not substantially alter the criminal coverage of the Act. Thus, the Senate Report on the 1969 amendments in-creasing the criminal penalties under Section 2272 and adding civil monetary sanctions to the Act only referred to the crim-inal sanctions of Sections 2131 and 2272 as " requiring a Com-mission license for the possession, manufacture, or transfer of a production or utilization facility." S. Rep. No. 91-553, reprinted in [1969] U.S. Code Cong. & Ad. News 1607, 1611. 91
In light of the clear understanding of Congress, re-flected in its 1956 and 1969 reports, that "use" of a nuclear plant in violation of a license provision did not. fall within the criminal sanctions of Section 2131 and 2272, Counts 1, 3, 5, 6, and 8 of this indictment,-which are based on such viola-tions, fail to charge a crime and must be dismissed. B. The Government's Interpretation of Section 2272 Undercuts the Intention of Congress in Establishing Less Severe Sanctions for the Violation of Commis-sion Regulations Under Section 2273 Section 223 of the Act, 42 U.S.C. S 2273, prescribes criminal penalties for the willful violation of Commission regulations or orders promulgated under certain sections of the Act. Those penalties are substantially lighter than the penalties prescribed for certain statutory violations by Sec-tion 2272. Thus, Section 2273 provides for a fine of up to
$5,000 and impr.isonment of up to two years for a willful vio-lation of the specified regulations. Section 2272, on the other hand, provides for a fine . * $10,000 and imprisonment of up to ten years for the specific statutory violations covered in that section.21 Section 2272 also provides for the possi-bility of life imprisonment for the commission of the speci-21 Indeed, Congress increased the maximum prison sentence under Section 2272 from five years to ten years in 1969 due to the severity of the crimes involved. It was the Senate Report on this 1969 amendment which referred to Section 2131 as " requiring a Commission license for the possession, manufacture, or transfer" of a nuclear plant.
92
fled offenses when done "with the intent to injure the United States or . . . to secure an advantage to any foreign nation." The rationale for the more severe penalties provided in Section 2272 is clear. The statutory violations made crim-inal in that section include highly serious offenses such as - unauthorized dealings in special nuclear material (42 U.S.C. S 2077), dealing with atomic weapons (42 U.S.C. S 2122) or possessing or using a nuclear facility without a license (42 U.S.C. S 2231). Section 2273, on the other hand, prescribes less severe criminal penalties for the violation of a host of Commission regulations dealing with, among other things, the making of reports and keeping of records as to certain license violations (42 U.S.C. 5 2201(o)). The 1956 amendment which added the word "use" to 4 Section 2131 should not be construed to expand the more severe criminal sanctions of Section 2272 to include all license vio-lations. Such a construction would have the anomalous effect of imposing the most severe sanctions provided for in the Act for the violation of a wide array of license provisions, while applying the less severe sanctions of Section 2273 to the vio-lation of actual Commission regulations and orders. This , anomaly is heightened by the fact that the Technical Specifi-cations, which the indictment purports to be aimed at, are themselves deemed included in the operating license by virtue of a Commission regulation, i.e., 10 C.F.R. S 50.36(a), viola-93
tion of which would be covered by Section 2273 and not Section 2272. There is yet another reason why the Court should not adopt a construction of Section 2272 which would make all li-cense violations criminal. Since every Commission license to - operate a nuclear plant requires compliance with all Commis-sion regulations and orders, under such a construction every . violation of the regulations covered in Section 2273 would also be subject to the more severe penalties of Section 2272
-- in effect, totally negating Section 2273 and its lesser .
sanctions. Thus, the inescapable conclusion is that, in pass- , ing Section 2131 and the 1956 amendment thereto, Congress did - not intend to impose the severe criminal sanctions of Section 2272 for every violation of a license provision. C. The Government's Interpretation of Section 2272 Is Contrary to the Authori-tative Interpretation by the NRC It is also clear that the Commission itself has con-strued the Atomic Energy Act not to provide criminal sanctions for license violations. Thus, 10 C.F.R. S 50.110 provides that:
"A court order may be obtained for the payment of a civil penalty imposed pursu-ant to section 234 of the Act for viola-tion of . . . any rule, regulation, or or-der issued thereunder, or any term, condi-tion, or limitation of any license issued thereunder . . .
However, that same regulation provides that criminal sanctions may be imposed only on a person who 94
" willfully violates any provision of the Act or any regulation or order issued thereunder. . . ." Id.
Thus, the Commission's interpretation clearly is that license violations give rise only to civil sanctions, while willful violations of sections of the Act and certain regulations may result in criminal penalties. As discussed in Point I, supra, it is well estab-lished that an administrative agency's construction of stat-utes within its area of jurisdiction are entitled to " great deference." Udall v. Tallman, 380 U.S. 1, 16 (1965); Rosen v. Public Service Electric and Gas Co., 477 F.2d 90, 94 (3d Cir. 1973). Accord, United States v. National Association of Secu-rities Dealers, Inc., 422 U.S. 694, 719 (1975); Investment Company Institute v. Camp, 401 U.S. 617, 626-27 (1971); Na-tional Resources Defense Council, Inc. v. Securities and Ex-change Commission, 606 F.2d 1031, 1050 (D.C. Cir. 1979). In-deed, the Supreme Court in Tallman held that it would accept an administrative agency's construction even if it were not the one "we would have reached had the question arisen in the first instance in judicial proceedings." 380 U.S. at 16. An agency's interpretation should be entitled to particularly great weight where, as here, it is set forth in a formal regu-lation issued pursuant to statutory authority. Since five counts of the indictment are based solely on alleged license violations, which cannot be the basis of a criminal prosecution under the Commission's authoritative con-95
struction of the statutes in question, these counts are insuf-ficient as a matter of law. D. Sections 2131 and 2272 Cannot Apply to the License Violations Alleged in the Indictment As demonstrated above, the language and the legisla-
. tive history of Sections 2131 and 2272, the severity of the I}
penalties provided in Section 2272 as compared to those in
, Section'2273, and the NRC's construction of the Act all estab-h lish that license violations are not criminal under Section 5 2272. However, even if, contrary to the legislative history, Sections 2131 and 2272 were interpreted to impose criminal penalties for certain types of license violations, they should i not be interpreted to apply to the violations alleged in this L-indictment.
[ Section 2131, as amended, prohibits "use" of a nu- ) clear utilization facility, i.e., a nuclear plant, except "un-der and in accordance with a license issued by the Commis-L sion." As long as there is nothing in the plant's license
- which prohibits its "use" under a given set of circumstances, b Section 2131 clearly should not apply. Thus, if a license provision is violated requiring the shutdown of the plant, i
- 2131 is arguably violated since the plant's license no longer i
_ permits its "use." However, if some license violation occurs t which is not serious enough to require shutdown of the plant,
= the prohibition against "use" of the plant cannot apply.
None of the Counts of the indictmen' purportedly based on license violations allege violation of any limiting 96 E m
condition for operation ("LCO") contained in the TMI-2 li-cense, which would require shutting down the Unit. All that is alleged in the Counts in question is that the Company vio-lated license provisions requiring the establishment of "an accurate and meaningful" reactor coolant system water inven-tory balance ("RCIB") procedure to measure unidentified leak-age (Count 1); demonstrating by performance of an RCIB proce-dure that unidentified leakage was within allowable limits (Count 2); entering the Action Statement when "information" from the RCIB procedure " indicated" excessive unidentified leakage (Count 5); retaining records of all surveillance ac-tivities required by the Technical Specifications (Count 6); and notifying the NRC of a failure "to enter the Action State-ment after receiving information indicating" excessive leakage (Count 8). None of these or any other Counts allege the actual violation of a limiting condition for operation requiring a shutdown of the plant. Thus, even if Sections 2131 and 2272 could be read to apply to the operation of a plant in a condi-tion prohibited by the license, this indictment does not make such allegations. I 97
E.- Congress Made Clear in Other Sections of the Act When It Intended to Impose Sanctions for License Violations When Congress intended to provide sanctions for vio-lations of any and all license provisions and regulations, it did so in clear, unambiguous terms very different from the terms of Sections 2131 and 2272. Thus, Section 234 of the Act, 42 U.S.C. S 2282, providing for civil penalties, states in relevant part as follows: ,
"Any person who violates . . . any rule, regulation or order issued [under speci-fied sections of the Act) or any term, condition or limitation of any license is-sued thereunder . . . shall be subject to a civil penalty . . . not to exceed $5,000 for each violation. . . . " 42 U.S.C.
S 2282(a) (emphasis added). When Congress intended to apply sanctions for the violation of "any term, condition or limitation of any li-cense" it plainly knew how to express that intention. Sec-tions 2131 and 2272 do not contain such language. They apply instead to the more serious offense of operating without a li-cense or, at most, operating under circumstances in which the license prohibits continued operation. Since Counts 1, 3, 5, 6 and 8 do not allege any such license violations, those Counts are legally insufficient. As the Third Circuit held in Marshall v. Western Union Telephone Co., 621 F.2d 1246 (3d Cir. 1980):
"Under the usual canons of statutory con-struction, where Congress . . . has care-98
- . C
. .. : . ./ .
r, , . *O' W ;, r. , fully employed a term in one place and ex- N.:# . 1; cluded it in another, it should not be im- -Rf ~
- plied where excluded." 621 F.2d at 1251. .P.V .m i g, n... l ;-
.i ,
Accord, Federal Trade Commission v. Sun Oil Co., 371 U.S. 505, #/ ,7....:( S : ' .- .lJ 514-15 (1963); Diamond Roofing Co. v. Occupational Safety and af.,3 .! .
- . .:,'.,r.
- i. . . <; . ;.
4 Health Review Commission, 528 F.2d. 645, 646 (5th Cir. 1976); r q'[ .j,,6 y . City of Burbank v. General Electric Co., 329 F.2d 825, 832 .$(Q , y $4 .,- (9th Cir. 1964). 4..# . T*" Since Congress " carefully employed" language in Sec- (' mal' ;t ,
; ,;.. g ??. . $ tion 2282 specifically providing civil sanctions for the vio- jyjf 3 p_ s lation of "any term, condition or limitation of any license," - .
.s ..$q ", y and failed to use such specific language with respect to the ?p. pg
.M),.
.f, . criminal sanctions provided in Sections 2131 and 2272, those
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R sections should not be interpreted to apply to the license vi- J. y.5 .s. ' s n.s{.- olations alleged in this indictment. 9 ','.l . _ l;-- i,W" Q :; .
- j F. The License Violations Alleged
. in the Indictment Cannot Be' P[*[y ,F Uf 9
.; Prosecuted Under Sections 2131 -
',m' . ' and 2272 on Grounds of Vaqueness %o.7g
.y J
$ As established in Point II, supra, a party may not ',7%.) : n.n e. be criminally prosecuted unless its conduct is clearly and un-g$Q.-C :u .. S. p. ambiguously prohibited by the statute in question. With re- M.K
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, .: n F*
spect to the Counts alleging license violations, we have al-YR > :
\;:
z' ready shown that the license provisions themselves are, at best, unclear and ambiguous. kl3 M gi" 4 .: ] Moreover, even if Section 2131 could be interpreted Tk,, .a[ e ,
. ..e 9..
to apply to license violations, which we have shown it cannot, 9 s.IM e
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that Section itself certainly does not apply clearly and unam- .i ' biguously to the license violations alleged in the indictment.
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In light of the language and legislative history of the Act itself, the NRC's interpretation that it was not intended to criminalize license violations, and the fact that Congress elsewhere.made plain when it wished to provide civil sanctions for all license violations, it is clear that Section 2131 does not explicitly and unambiguously apply to the license viola-tions alleged in the indictment -- violations which were not serious enough to require the shutdown of the plant and to prohibit its "use" under section 2131. M. Kraus & Bros., Inc. v. United States, supra, 327 U.S. 614, is in point. In Kraus, the Government argued that a pricing regulation should be construed to prohibit " tying .. . = .- agreements" even where the tied product had its own value. ^t, f@;;, i Elsewhere in the regulations the intention to prohibit such
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& :-L.c tying agreements in other contexts was specifically spelled l.Q y/y;.
out. In holding that the regulation in question (Section J.
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1429.5), which lacked such specificity, was too vague to sup- .gdf 6 s. , port a criminal prosecution, the Supreme Court stated that: 1j/pg wm v "The Administrator's failure to express adequately his intentions in Section E% 1429.5 is emphasized by the complete and va9 . .M.. ...," unmistakable language he has used in other price regulations to prohibit all tying
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agreements, including those involving the + E;. 3 > 7[kc. sale of valuable secondary products." 327 : U.S. at 625. .> 2 :n,~ 4. 4,fpq f Here, too, the vagueness of Sections 2131 and 2272 (if inter- j ~ g ' ;'
' 9..p ,
preted to apply to license violations) is " emphasized by the f complete and unmistakable language" Congress used to apply M ./ civil sanctions to all license violations in Section 2282. %{ s'
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a P The Counts of the indictment based on alleged license viola- - tions must therefore be dismissed. Point VI 1 SEPARATE COUNTS OF THE INDICTMENT P ALLEGING THAT THE SAME CONDUCT CONSTITUTED S A VIOLATION BOTH OF THE COMPANY'S LICENSE AND OF NRC REGULATIONS ARE MULTIPLICITOUS s Counts 1 and 2, 3 and 4, and 6 and 7 of the indict-T ment each allege that the exact same conduct on the part of E the Company constituted a criminal violation both of its li-l- cense and of regulations contained in 10 C.F.R. Part 50. 3 0 .;. , L M.1 ff. Thus, for example, Count 1 alleges that the Company violated dM. g .q g . = its license because it was on notice that the RCIB procedure ) d.I Q?' 1 did not accurately and meaningfully measure unidentified leak- %.:.I:- y .n .y age, but continued to use that procedure; Count 2 alleges that g.;.Qy . this same conduct violated regulations contained in Part 50, ,s,. y ; x v;.yi.V >
- Appendix B. The law is clear that such duplicative Counts of L.g -p
- .: .-
an indictment are improper on grounds of multiplicity. M;".
;; ; .:: 7.j:
a The test as to whether two counts of an indictment -
?
are multiplicitous was stated by the Supreme Court in Block- Thy [J(( t 3.u . y WW; burger v. United States, 284 U.S. 299, 304 (1932) as follows:
- 4. , . . . . -
- "The applicable, rule is that when the same act or transaction constitutes a violation
.h of two distinct statutory provisions, the g*"fyO-I test to be applied to determine whether [pg y 3 " .:
there are two offenses or only one, is
- . whether each provision requires proof of a fact which the other does not." (Emphasis Q[pk d ?!
added.) 3 c .c . Q , '.R . g Similarly, in United States v. Pray, 452 F. Supp. = 788 (M.D. Pa. 1978), the Court stated: fj{M'.R 4hi g f t .e. r - y$T. pr : E m-
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s s "+; _ I = 101 M .@. is;;
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"To determine whether separate offenses may be carved out of a single incident, the standard to be followed is whether each separate offense alleged requires proof of a fact that the other does not."
452 F. Supp. at 799 (emphasis added). Accord, Whalen v. United States, 445 U.S. 684, 692-93 (1980); United States v. Mazzio, 501 F. Supp. 340, 344 (E.D. Pa. 1980), aff'd, 681 F.2d 810 (3d Cir. 1982). As the Supreme Court explained in Whalen, the rule against multiplicitous counts is "a rule of statutory construction stated by this Court in Blockburger v. United States, 284 U.S. 299, and consistently re-lied on ever since to determine whether Congress has in a given situation provided that two statutory offenses may be pun-ished cumulatively. The assumption under-lying the rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Accordin ly, where two statutory provisions pro g-scribe the 'same offense' they are con-strued not to authorize cumulative punish-ments in the absence of a clear indication of contrary legislative intent." 445 U.S. at 691-92. In the present case, the Counts in question do not each require " proof of a fact that the other does not." 452 F. Supp. at 799. Assuming, as a matter of law, that viola-tions of the TMI-2 license and 10 C.F.R. Part 50, Appendix B, give rise to criminal liability and that the alleged provi-sions mean what the Government says they mean, Counts 1 and 2 of the indictment each require proof of the exact same facts. 102
( Thus, the operative facts alleged in each Count are identical.22 The same is true of Counts 3 and 423 and of Counts 6 and 7.24 Since there is no indication that Congress 22 Both Counts allege in paragraph 2 that the Company was ' required "to establish, implement and maintain an accu-rate and meaningful reactor coolant system water inven-tory balance procedure to demonstrate that unidentified leakage was within allowable limits." Both Counts also allege in paragraph 3 that:
"the defendant company was on notice that .
its procedure for the reactor coolant sys-tem water inventory balance did not accu-rately and meaningfully measure the amount ' of unidentified reactor coolant leakage. Despite such notice, the defendant company continued to use such inaccurate and mean-ingless procedure in an effort to generate results which appeared to establish that reactor coolant leakage was within allowa-ble limits." Indictment, pp. 7, 8. 23 Counts 3 and 4 each allege that the Company was required "to demonstrate that unidentified reactor coolant leakage . did not exceed allowable limits by performance of a reac-tor coolant system water inventory balance procedure." Both Counts also allege that:
"the defendant company intentiona-lly ma-nipulated the reactor coolant leak rate tests by the addition of water and hydro-gen to the reactor coolant system during the course of such tests and in this man-ner generated test results which appeared to, but did not in fact, fulfill the de-fendant company's license requirements."
Indictment, pp. 9, 10. 24 Counts 6 and 7 each allege that the Company was required "to retain records of all surveillance activities re-quired by the Technical Specifications for a period of at least five years [and that] [t]he reactor coolant system water inventory balance procedure was a surveillance ac-(Footnote continued) 103
intended to impose cumulative punishments for the same of-fense, the Blockburger rule requires that one of each of these paired Counts be dismissed.25 The fact that Counts 1, 3 and 6 purport to be based on the violation of license requirements, while Counts 2, 4 and 7 purport to rely on regulations does not satisfy the re-quirement that each Count contain separate factual elements. See United States v. Pray, 452 F. Supp. 788, 800 (M.D. Pa. 1978) (applying the rule against multiplicity to separate Counts alleging violations of the mail fraud statute and of SEC regulations). The meaning of the respective license re-quirements and regulations presents issues of law, not fact. If, as a matter of law, those provisions mean what the Govern-ment claims, then the factual elements of each of the paired Counts are identical and therefore multiplicitous. Furthermore, in the case of the Counts in question, the alleged regulatory violations are wholly dependent on the (Footnote 24 continued from previous page) tivity required by the Technical Specifications." Both Counts also allege that "the defendant company destroyed, discarded, and failed to retain records relating to the reactor coolant system water inventory balance procedure." Indictment, pp. 12, 13. 25 As demonstrated above, Congress did not intend to apply the severe criminal sanctions of Section 2272 to license violations such as those alleged in this indictment. Clearly, if the alleged conduct violated regulations spe-cifically covered by Section 2273, the intention of Con-gress would be served by treating such conduct under Sec-tion 2273 and not 2272. 104
alleged license violations. There is nothing in 10 C.F.R. Part 50, Appendix B, which independently requires that the Company maintain an accurate RCIB procedure to measure uniden-tified lea,kage (Count 2) or demonstrate by performance of an RCIB procedure that unidentified leakage is within allowable limits (Count 4). Appendix B also does not mandate that the Company retain records of all surveillance tests required by the Technical Specifications for five years (Count 7). In { l each case, the Government's argument must be that the regula-tions were violated because the license was violated. Thus, even as to the issue of what the license requires, the regula-tion Counts are identical to the license Counts and, there-fore, clearly multiplicitous. As the Third Circuit pointed out in United States v. Carter, 576 F.2d 1062, 1064 (3d Cir. 1978), multiplicitous counts "may prejudice the jury against the defendant by creat-ing the impression of more criminal activity on his part than in fact may have been present." It is therefore clear that when an indictment plainly states the same offense in two sep-arate counts, one of the multiplicitous counts must be dis-missed. United States v. Pray, supra, 452 F. Supp. at 800; see United States v. Provinzano, 50 F.R.D. 361, 365-66 (E.D. Wis. 1970); United States v. Thoreson, 281 F. Supp. 598, 607 (N.D. Cal. 1967) (requiring the Government to elect between multiplicitous counts). As the Cours stated in United States
- v. Birrell e 266 F. Supp. 539 (S.D.N.Y. 1967):
105 f
"Where the duplicity appears upon the face of the indictment so clearly that it is manifest that the Government cannot, as a matter of law, prove separate and distinct offenses, the question can and should be decided without awaiting the trial." 266 F. Supp. at 544.
Accord, United States v. Walker, 524 F. Supp. 1029, 1031 (E.D. Pa. 1981). 9 In this case, the indictment, alleging the exact same facts in separate counts, charges that those facts con-stitute violations of two criminal statutes. Since it is therefore plain "upon the face of the indictment" that these counts are multiplicitous, the offending counts must be dis-missed before trial. 106
.a
=,
CONCLUSION [
=
. For the reasons stated in this memorandum, this Court should grant defendant's motion to dismiss the indict- ;
ment. Dated: December 19, 1983 Respectfully submitted, .: m KAYE, SCHOLER, FIERMAN, HAYS & ,, HANDLER f"
\
/ b Of Counsel By:
dtC , ' MW~ - 4 David Klingsberg Paul Q. Curran 425 P6rk Avenue M Myron Kirschbaum d; New York, NY 10022 (212) 407-8000 d SHAW, PITTMAN, POTTS & TOWBRIDGE I By: u,- tVAJ M ' 0.
~[ p Patric k' Eic.ce / =
1800,M Street, N . Q Washington, DC 20036 - g (202) 822-1000 g RHOADS, SINON & HENDERSHOT s j T_ By:
- Paul H. Rhoads by R. Stephen,Shilba m 410 North Third Street el Post Office Box 1146 7 Harrisburg, PA 17109 I (717) 233-5731 5 Attorneys for Defendant d I
Metropolitan Edison Company ' _d
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107 W - d
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- 09.E ag IU I
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE PRESIDING BOARD [C } l: g "
)
In the Matter of )
)
INQUIRY INTO THREL MILE ISLAND ) Docket No. LRP UNIT 2 LEAK RATE Dk2A ) FALSIFICATION )
)
CERTIFICATE OF SERVICE I hereby certify that I have served copies of " Reply of the Numerous Employees to the Proposed Findings of Fact and Conclusions of Law of GPU Nuclear Corporation and the Aamodts",
" Comments of the Numerous Employees in Response to the Board's February 2, 1987 Request and Order", and " Numerous Employees' Objections to Transcript Corrections Proposed By Other Parties and By NRC Staff" by hand delivery on February 17, 1987, or, as indicated by an asterick, by Federal Express on February 16, 1987, to the following persons:
Administrative Judge James L. Kelley, 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 James H. Carpenter Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555
,, ' h ; i/<
~
j
., ! i 7 l j- -j Mary E. Wagner, Esq.
i 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 ,. L l'
,IA Ernest L. Blake, Jr., Esq.
Shaw, Pittman, Potts & Trowbridge 2300 N Street, N.W. Washington, D.C.- 20037 i;
}
- James B. Burns, Esq. j \.
Isham, Lincoln & Beale < Three First National Plaza- , Suite 5200 Chicago, IL 60602 .;
- Michael W. Maupin, Esq.
Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, VA 23212
, ;. I further hereby' certify that I.have served copies of
'" Reply ofpthe Numerous Employees to the Proposed Findings of Fact andf Conclusions of Law of GPU Nuclear Corporation and the Aamodts" and " Numerous Employees' Objections to Transcript Corrections Propo'ged By Other Parties and By NRC Staff" by Federal Express on February 16, 1987 to the following person:
Ms. Marjorie M. Aamodt 180 Bear Cub Road
- P.O. Box 652 Lake Placid, NY 12946 mon 2 d , a O Oo .
- t3 James W. Moeller y :
l}}