ML20212D072

Clarification Re Numerous Employees Memorandum of Law.* Discusses Numerous Employees 870123 Position That Surveillance & Administrative Procedures Were Not Legal Requirements.Certificate of Svc Encl.Related Correspondence

ML20212D072
Person / Time
Site:	Three Mile Island
Issue date:	02/27/1987
From:	Voigt H GENERAL PUBLIC UTILITIES CORP., LEBOEUF, LAMB, LEIBY & MACRAE
To:
References
CON-#187-2645 LRP, NUDOCS 8703040057
Download: ML20212D072 (5)

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DOLMETED UNITED STATES OF AMERICA 'Jw r NUCLEAR REGULATORY COMMISSION

'87 MAR -2 P4 :35 BEFORE THE PRESIDING BOARD GFf:

r;p g In the Matter of l 5N ' 3 A" INQUIRY INTO THREE MILE ) Docket No. LRP ISLAND UNIT 2 LEAK RATE )

DATA FALSIFICATION )

)

CLARIFICATION REGARDING NUMEROUS EMPLOYEES' MEMORANDUM OF LAW In the course of this proceeding, the Board posed numerous questions to the witnesses whether certain leak rate testing practices at TMI-2 violated Administrative Procedures and Surveillance Procedures in effect in 1978-79. Ir. a Memorandum of Law filed January 23, 1987, those " Numerous Employees" who are parties took the position that such Procedures were not legal requirements.

On February 3, 1987, the Board issued a " Request and Order" in which it asked the NRC Staff to comment on, inter alia, the question whether such Procedures are legal requirements and the question whether, assuming arguendo that they are not, the Board should nevertheless make findings on f

such violations, if any, that did occur, and inform the l

Commission of "significant gaps in the regulatory scheme."

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On February 17, 1987, the NRC Staff filed the comments requested by the Board and took the position that such Procedures are legal requirements. The NRC Staff also stated:

" Finally, and most importantly, the Staff wishes to emphasize its concern that the Numerous Employees, some of whom currently hold reactor operator or senior reactor operator licenses, take the position that they are not required to ' adhere to' facility operating procedures. It is the Staff's position that any individual who does not understand his obligation to adhere to facility procedures is not qualified to possess an NRC license and that any such individual should not be permitted to be involved in activities regulated by the NRC. The Staff, in order to meet its obligation to protect public health and safety, would promptly initiate enforcement action to remove any such individual from regulated activities.8/

8/ Numerous Employees also argue that any NRC regulatory scheme imposing on the operators a legal requirement to adhere to administrative procedures is void for vagueness. Employees' Memorandu'm at 18-20.

This argument is not persuasive. As set forth above (see pp. 3-4, supra), the record is clear that the TMI-2 operators were required to comply with licensee's administrative procedures."

"NRC Staff's Response to the Presiding Board's Request and Order" at 12.

In view of the above, counsel for the NRC Staff and counsel for the Numerous Employees agreed to attempt to satisfy the concerns raised by the NRC Staff in the above-quoted passage from its Response. As to the licensed operators at Three Mile Island who are parties to this proceeding and therefore are parties to the Memorandum of Law, counsel for those parties state as follows:

The licensed operators who are parties to the Memorandum of Law intend to adhere to all facility operating procedures, including administrative procedures, and the legal position taken by Numerous Employees at pages 14-18 of the i Memorandum of Law does noc conflict with the individual written and oral statements concerning adherence to procedures made by

- those licensed operators to the NRC during its investigation of leak rate testing at TMI-2.

This Clarification is being filed with the Presiding Board so as to avoid the necessity (in the Staff's view) for anforcement action while the issue herein is pending before the Board.

Respectfully submitted, LeBOEUF, LAMB, LEIBY & MacRAE By m A (Partner g' 1333 New Hampshire Avenue, N.W.

Suite 1100 Washington, D.C. 20036 (202) 457-7500 l KILLIAN & GEPHART 216-218 Pine Street l

Harrisburg, PA 17108 l

t (717) 232-1851 Att' ineys for the Numerous Employees February 27, 1987 l

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION pggg c.

Ni< c BEFORE THE PRESIDING BOARD

'87 MAR -2 P4 :35 UFF) . . . _ .

) liOCK D im . . > a:j

)

BU !aA In the Matter of

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

FALSIFICATION )

)

CERTIFICATE OF SERVICE I hereby certify that I have served copies of

" Clarification Regarding Numerous Employees' Memorandum of Law" by hand delivery on February 27, 1987, or by first-class mail on February 27, 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

', ' . ' ~

Mary E. Wagner, Esq.

Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Branch (3)

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Ernest L. Blake, Jr., Esq.

Shaw, Pittman, Potts & Trowbridge 2300 N Street, N.W.

Washington, D.C. 20037 James B. Burns, Esq.

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

Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, VA 23212 Ms. Marjorie M. Aamodt 180 Bear Cub Road P.O. Box 652 Lake Placid, NY 12946 1 L W. L2 0

Harry H. Voigt 0

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