ML20140D707

Response Opposing Movants 860114 Motion for Clarification & Reconsideration of Commission 851218 Order Specifying Procedures to Govern Hearing Re Leak Rate Data Falsification.Certificate of Svc Encl

ML20140D707
Person / Time
Site:	Three Mile Island
Issue date:	01/31/1986
From:	Jim Hickey GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	NRC COMMISSION (OCM)
References
CON-#186-898 85-519-2-SP, 86-519-02-SP, 86-519-2-SP, LRP, NUDOCS 8602030099
Download: ML20140D707 (9)

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UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION pt(31 ig pr -

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BEFORE THE COMMISSION

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In the Matter of )

) Docket No. LRP INQUIRY INTO THREE MILE )

ISLAND UNIT 2 LEAK RATE ) ASLBP No. 86-519-02 SP DATA FALSIFICATION )

GPU NUCLEAR CORPORATION'S ANSWER TO MOTION FOR CLARIFICATION AND RECONSIDERATION By Order dated December 18, 1985, the Commission specified the procedures that would govern the hearing convened to develop the facts surrounding the involvement of individuals in any leak rate falsifications that occurred at Three Mile Is-land, Unit 2 between February 2, 1978 and March 28, 1979.

CLI-85-18, Docket No. LRP (Dec. 18, 1985). In summary, the Commission has decided upon a legislative format.

On January 14, 1986, "on behalf of numerous former employees of Metropolitan Edison Company who will be involved in this proceeding either as intervenors or as witnesses," the law firms of LeBoeuf, Lamb, Leiby & MacRae and Killian &

Gephart ("Movants") filed a Motion for Clarification and Recon-sideration of CLI-85-18. GPU Nuclear Corporation, which has recently filed with the Presiding Board a petition for leave to intervene in the TMI-2 leak rate proceeding, herein sets forth its views on the Motion for Clarification and 860203009? B60131 PDR G ADOCK 03000320 PDR O3

I Reconsideration.1/

As a preliminary matter, GPU Nuclear Corporation does not share Movants' concern about the meaning of the Commission's statements on the significance of this proceeding to individ-uals. Motion for Clarification and Reconsideration at 2-3.

CLI-85-18 clearly indicates that the Commission will use the recommendations made by the Presiding Board and the NRC Staff in this proceeding as a basis for considering what further ac-tions, if any, should be taken with regard to any individuals.

CLI-85-18, slip op. at 10. Consideration will be given by the Commission to the need for formal enforcement action against individuals, although this recourse may be barred by the appli-cable statute of limitations. Consideration also will be given to removing existing employment constraints now placed on indi-viduals. Id. at 11. Whether or not a formal proceeding is in-stituted, however, the Commission will consider the TMI-2 leak rate proceeding record in evaluating the qualifications of af-fected individuals to receive renewal of a currently issued license (or, presumably, to hold a new license). Id. This does not mean, however, that individuals would be denied the oppor-tunity to contest any adverse action proposed to be taken by 1/ As Movants indicated, they have not yet sought intervenor status on behalf of any of their clients in this proceed-ing. As a result, their standing to file this Motion is unclear. Although GPU Nuclear Corporation has filed a pe-tition to intervene, it has not yet been granted interve-nor standing; however, it appears appropriate for us to respond in a timely fashion to the Motion for Clarifica-tion and Reconsideration.

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the Commission as a result of the TMI-2 leak rate proceeding.

To the contrary, the Commission has clearly stated that if it

" institutes a formal enforcement proceeding or takes any licensing action," the facts found in the TMI-2 leak rate pro-ceeding "will not be binding in the subsequent enforcement or licensing proceeding." CLI-85-18, slip op. at 11 (emphasis added). In sum, there is no ambiguity in CLI-85-18 with re-spect to the proceeding's impact on individuals.

The crux of the Motion for Clarification and Reconsid-eration, however, is focused on the hearing scope and the pro-cedures specified by the Commission for the TMI-2 leak rate proceeding. The Motion first expresses a concern about the omission from CLI-85-18 of the " threshold" issue of the reason-ableness of the leak rate limits imposed at TMI-2, as well as the general reliability and significance of the requirements for quantifying reactor coolant system unidentified leakage in the industry. Motion for Clarification and Reconsideration at

3. GPU Nuclear, again, does not share Movants' apparent con-cern in this case about appropriate matters going unaddressed in the TMI-2 leak rafa proceeding.

The purpose of t e subject proceeding is to determine who participated in, had knowledge of and condoned, or by their dereliction or culpable neglect allowed leak rate falsifica-l tions at TMI-2. CLI-85-18, slip op. at 9. This statement of l

the issues by the Commission notes that "the facts surrounding e

s any such involvement" by any individual are relevant, insofar i

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I as they shed light on the involvement of an individual who may now work, or in the future work, at a nuclear facility. Id.

The Commission's statement of the issues, as well as the delin-eation of sub-issues in CLI-85-18, such as how the Technical Specification requirements on unidentified leakage tests were interpreted by individuals, permits the Presiding Board to in-quire, as it finds it necessary to do so, into the background or context of TMI-2 leak rate matters. But the Commission has made it clear that the purpose of this proceeding is to deter-mine the involvement of particular individuals in improper ac-tivities. The proposed additional issue would significantly expand the scope of the proceeding into a consideration of in-dustry and NRC practices generally, independent of the state of This expan-mind or the actions of the relevant individuals.

sion is unnecessary to thoroughly resolve the matters at hand.

The Motion for Clarification and Reconsideration next seeks reconsideration of the Commission's prohibition on dis-covery in the TMI-2 leak rate proceeding. Motion for Clarifi-j Movants' argument concerns cation and Reconsideration at 4. j the theoretical need for discovery with respect to individuals who have never previously commented on these matters and who will be called as witnesses at the proceeding. Counsel argues that fairness requires advance notice of these individuals' views. Id.

Counsel's concern is inextricably linkeo to its third re-consideration request, namely, that cross-examination by 1'

counsel be the rule, not the exception. Id. at 4-5. The con-cern obviously is that counsel for individuals who intervene or are witnesses will be unable to cross-examine witnesses as effectively if they do not have complete and formal access to background information and previous statements by the witness-es. More generally, Movants believe that they can make a valu-able contribution to the fact-finding process. Id.

GPU Nuclear Corporation appreciates Movants' concern to ensure that the TMI-2 leak rate proceeding is conducted in a manner that allows the fact-finding process to result in "an orderly and complete record." Id. at 4. GPU Nuclear whole-heartedly endorses this goal. We believe, however, that the carefully-conceived procedures established by the Commission in CLI-85-18 will in all likelihood work efficiently to establish what the facts are with respect to leak rate practices at TMI-2. For example, the Presiding Board appears to have the discretion to require the prefiling of testimony which, in the case of witnesses who have not previously addressed the matters at hand, might eliminate the element of surprise of concern to Movants. See CLI-85-18, slip op. at 8 [ reference to 10 C.F.R. 5 2.718(e. Certainly in the abstract, before the process has begun, there is a compelling attractiveness to a legislative-type process that avoids extremely time-consuming adversarial procedures which would require the commitment of substantial personnel and financial resources on the part of the Commission and all participants in the process. t The Commission's chosen approach to the TMI-2 leak rate proceeding reflects a deliberate decision to utilize open, but . nonadversarial procedures to conduct a fact-finding inquiry. Should action adverse to any individual be considered by the Commission as a result of the outcome of this fact-finding pro-cess, that action would have to be pursued by the agency through a licensing or enforcement process that provides to individuals the opportunity for a hearing with full procedural safeguards. GPU Nuclear Corporation is hopeful that in many -- perhaps all -- cases, the Commission will be able to confi-dently decide that no enforcement action should be taken. In those -- hopefully few, if any -- cases where the present fact-finding process results in recommendations adverse to an individual's interest, that individual can evaluate those find-ings at that time, and determine whether it is in his best interest to challenge those findings through the agency's for-mal procedures. In CLI-85-18, the Commission expressly recognized the potential desire for specific uses of discovery or cross-examination when it requested the Presiding Board to seek Commission authorization of such uses should the circumstance arise. CLI-85-18, slip op. at 10. To decide now, however, that fact-finding cannot proceed effectively without the trap-l pings of an adversarial process -- e.g., discovery and cross-examination -- is premature and, potentially, not in the interests of the Commission, the individuals and parties involved, or the public.

i. i For the reasons stated above, GPU Nuclear Corporation op-poses the Motion for Clarification and Reconsideration filed by LeBoeuf, Lamb, Leiby & MacRae and Killian & Gephart, subject to possible resubmission in part or in whole at a later date, should Movants' concerns prove such action to be justified. Respectfully submitted,

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Errest L. BLhke, Jr., .C. J. Patrick Hickey, P sc SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W. Washington, D.C. 20036 (202) 822-1215 Counsel for GPU Nuclear Corporation l Dated: January 31, 1986 5

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Af '. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION p%N , g:.$93 l 3/ si. g@.o - BEFORE THE COMMISSION In the Matter of )

                                                       )      Docket No. LRP INQUIRY INTO THREE MILE                     )

ISLAND UNIT 2 LEAK RATE ) ASLBP No. 86-519-02 SP DATA FALSIFICATION ) CERTIFICATE OF SERVICE I hereby certify that on January 31, 1986, I served the foregoing "GPU Nuclear Corporation's Answer to Motion for Clar-ification and Reconsideration" by hand delivery upon those per-sons identified with one asterisk and by deposit in the U.S. mail, first class, postage prepaid, upon the following:

• Chairman Nunzio J. Palladino U.S. Nuclear Regulatory Commission Washington, D.C. 20555
• Commissioner Thomas M. Roberts U.S. Nuclear Regulatory Commission Washington, D.C. 20555
• Commissioner James K. Asselstine l U.S. Nuclear Regulatory Commission Washington, D.C. 20555
• Commissioner Frederick Bernthal U.S. Nuclear Regulatory Commission Washington, D.C. 20555
• Commissioner Lando W. Zech, Jr.

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

1 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 Jerry R. Kline Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Jack R. Goldberg, Esquire (4) Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section (3) Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Harry H. Voigt, Esquire LeBoeuf, Lamb, Leiby & MacRae 1333 New Hampshire Avenue, N.W. Washington, D.C. 20036 J Smith B. Gephart, Esquire Killian & Gephart 218 Pine Street Harrisburg, PA 17108 l c. h~ J. Patrick Hickey, q.C.

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