CLI-85-02, Response Opposing TMI Alert 860228 Motion to Dismiss & for Stay of Decisions in CLI-85-02 & 850905 Notice of Hearing to C Husted.Motion Untimely & W/O Merit.Certificate of Svc Encl

Response Opposing TMI Alert 860228 Motion to Dismiss & for Stay of Decisions in CLI-85-02 & 850905 Notice of Hearing to C Husted.Motion Untimely & W/O Merit.Certificate of Svc Encl

ML20138A897
Person / Time
Site:	Three Mile Island
Issue date:	03/19/1986
From:	Johnson G NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC COMMISSION (OCM)
References
CON-#186-461 CH, CLI-85-02, CLI-85-2, NUDOCS 8603200205
Download: ML20138A897 (10)

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USNRC UNITED STATES OF AMERICA . 86 MR 19 P5 :12 NUCLEAR REGULATORY COMMISSION

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BEFORE THE COMMISSION GOCKU,>'7,>

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GENERAL PUBLIC UTILITIES NUCLEAR ) Docket No. 50-289 (CH)

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i NRC STAFF RESPONSE TO TMIA'S MOTION TO DISMISS AND FOR STAY 4

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.I p George E. Johnson i Counsel for NRC Staff March 19,1986 4

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMf11SSION

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In the Matter of )

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GENERAL PUBLIC UTILITIES NUCLEAR ) Docket No. 50-289 (CH)

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(Three Mile Island Nuclear Station, )

Unit No.1) )

NRC STAFF RESPONSE TO TMIA'S MOTION TO DISMISS AND FOR STAY 1

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George E. Johnson Counsel for NRC Staff March 19,1986 1

t IJNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

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GENFRAL PUBLIC UTILITIES NUCLEAR ) Docket No. 50-289 (CH)

)

(Three Mile Island Nuclear Station, )

Unit No.1) )

NBC STAFF RESPONSE TO TMIA'S MOTION TO DISMISS AND FOR STAY i

I. INTRODUCTION In a document very much resembling "TMIA's Response to Licensee's Notice Transmitting Husted's Request for Hearing," submitted to the Com-

mission on April 22, 1985, TMIA has now filed "TMIA's Motion to Dismiss and for Stay" and an accompanying " Memorandum in Support of TMIA's Motion to Dismiss and for Stay" (Memorandum"), dated February 28, 1986.

The thrust of these new submissions is to persuade the Commission to reverse its decisions in CLI-85-2,1 and the September 5,1985 Notice of Hearing (" Notice of Hearing") 2,/ in the captioned proceeding, in which

the Commission offered the opportunity for, and then granted, a hearing i

to Charlen ilusted on whether the condition the Appeal Board placed on authorizing the restart of Three Mile Island, Unit 1 (TMI-1), which re-1 J

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-1/ Metropolitan Edison Company, et al. (Three Mlle Island Nuclear Sta-l tion, Unit 1), CLI-85-2, 21 NRC 282 (1985).

2/ 50 Fed. Reg. 37098 (September 11, 1985).

1 l

quired that Charles Husted "have no supervisory responsibilities insofar 3_,/

as the training of non-licensed personnel is poncerned," should be vacated. The basis for TMIA's motion to dismiss is' essentially two-fold.

First, TMIA argues that the new hearing would permit relitigation of is-sues which were previously litigated (in which prior litigation Mr. Husted allegedly chose not to participate) and finally decided in ALAB-772. See-ond, it is argued that by failing to request a hearing within the 20 days specified in CLI-85-2, Mr. Husted waived any further right to a hearing.

TMIA's motion to stay seeks to suspend the Husted proceeding, pending a Commission decision on the motion to dismiss.

In view of the fact that TMIA has waited six months to seek recon-sideration of the Commission's Notice of Hearing and, in any event, has done nothing more than repeat virtually the same. arguments it made in its April 22, 1985 objections to Mr. Husted's request for hearing, TMIA's motion to dismiss is both untimely and without merit, and should be sum-marily denied. TMIA's stay motion is similarly lacking in merit and should be summarily rejected.

II. DISCUSSION A. TMIA's Motion to Dismiss is Untimely, and, in Any Event, Without Merit As noted above, in an April 22, 1985 pleading, U TMIA sought to have the Commission reject Mr. Ilusted's request for hearing on the basis 3_/ ALAD-772,19 NRC 1193,1224 (1984).

4/ "TMIA's Response to Licensee's Notice Transmitting Husted's Request for Hearing."

that the matters sought to be litigated were either litigated in the TMI-I Restart proceeding and decided by the Appeal Board in ALAB-772, or

, were matters upon which Mr. Ilusted could have sought to be heard, but did not. The Commission considered those arguments, and rejected them, 5_/ in favor of providing Mr. Husted a hearing on the four factual issues which formed the basis for the Appeal Board's decision to impose a condition barring Mr. Husted's employment in certain positions at TMI-1.

Although TMIA was free to seek reconsideration of that decision, it chose not to do so, until now. 6_/ Thus, not only has the Commission

. previously considered TMIA's arguments with respect to Mr. Husted's right to a hearing, II but TMIA must be deemed to have waived any righ t to seek Commission reconsideration of its decision to grant Mr. IIusted such hearing.

In addition to being both untimely and repetitive of previous arguments, TMIA's motion provides no substantive basis for 5_/ See Notice of Hearing, at 2, n.1.

6/ Cf.10 C.F.R. S 2.771,10 C.F.R. 5 2.705.

I 7/ See, Nuclear Engineering Company, Inc. (Sheffield , Illinois Low-Level Radioactive Waste Disposal Site), CLI-80-1, 11 NRC 1, 5 (1980) (reconsideration of previous Commission order, which declined i

to stay the immediate effectiveness of a Director's Decision during pendency of hearing, unwarranted where arguments in support thereof were similar to arguments previously considered and rejected) .

reconsideration. 1 First, TMIA is incorrect that the Appeal Board decision achieved finality with respect to the condition in question. By CLI-84-18, 20 NRC 808 (1984), the Commission took review of the matter, j

and by CLI-85-2, 21 NRC 282 (1985), the Commission determined to offer' Mr. Ilusted the opportunity to have a hearing on the factual basis for the i

Appeal Board's condition. Thus the matter was never finally determined.

Second, contrary to TMIA's implication in its memorandum, the Com-mission did not determine that the Appeal Board had the authority to im-

pose the condition on Husted's employment and thereby obviate the need for a hearing. Although in CLI-84-18 1 the Commission originally inquired into the legal question of the authority of the Appeal Board to impose a condition affecting Mr. Husted's employment where he was not a party and had no notice of the possibility of a sanction or opportunity to request a hearing, CLI-85-2 0_/ I clearly states that the Commission elected

! not to decide that legal question--obviating the need to do so by provid-ing the notice and opportunity for hearing, the lack of which the Commis-sion deemed to have raised the question of the Appeal Board's legal 8_/ The solo new argument is that Mr. Ilusted's request for hearing was untimely. That timeliness objection, however, ought to be deemed to have been waived by TMIA's failure to raise it in its April 22, 1985 response. In any event, the March 25, 1985 request by Mr. Ilusted was timely. The Commission order was served on February 26, 1985. Although the Commission gave Mr. Ilusted 20 days, that peri-od started on the day after the date of service, and was, by opera- )

, tion of the regulations, extended by 5 days for service by mail, and i by an additional 2 days, because the twenty-fifth day ~was-a Satur- l j day. 10 C . F. R . 6 2. 710.

9/ 20 NRC, at 811.

_10 / 21 NRC, at 31".

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authority in the first place. Thus, contrary to TMIA's assertions, it is entirely appropriate now to proceed to hearing on the factual issues relat-

. ing to the Appeal Board's condition.

Third , TMIA's arguments E that Mr. Husted waived his opportunity for a hearing by his failure to petition to intervene in the TMI-1 Restart proceeding miss the point. Any right for Mr. Husted to notice and opportunity for a hearing arises in the circumstances presented here not from any interest Mr. Husted may have had in the TMI-1 Restart proceeding, but from the condition of the Appeal Board which in effect operates as a sanction against Mr. Husted. Mr. Husted's failure to intervene in the TMI-1 Restart proceeding waived nothing inso-far as the Appeal Board condition is concerned, and TMIA's arguments concerning waiver are without merit.

Fourth, contrary to TMIA's Memorandum, at 10, the Commission's Notice of Hearing, at 3, is quite clear that, in expanding the scope of the hearing (to include a consideration as to whether Mr. Husted is barred by concerns about his attitude or integrity from serving an an NRC-licensed operator, a licensed operator instructor or training supervi-sor), the Commission did, in fact, consider its inability to grant relief from the stipulation reached between GPU Nuclear and the Commonwealth of Pennsylvania. Although the instant proceeding will not directly affect the stipulation between the licensee and the Commonwealth on how Mr. Husted is employed, it will permit a determination as to the propriety of the Appeal Board's condition on Mr. Husted's employment. TMIA has H/ Memorandum, at 8.

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pointed to no error in this regard which would warrant further consideration.

, , Finally, while the pending hearing may indeed result in some further consideraton of limited issues considered in a different context in the TMI-1 Restart proceeding, such limited relitigation may be unavoidable.

In CLI-85-2, 21 NRC at 316-31", the Commission noted that " difficult questions" have been presented regarding whether due process and Section 189a of the Atomic Energy Act require that Mr. Husted be given notice and opportunity for a hearing on the Appeal Board condition. In view of the substantial doubts thus raised by imposition of a condition adversely affecting Mr. Husted's employment, any limited relitigation nec-essary to give Mr. Husted the right to be heard and to be a party in a proceeding on the condition is clearly warranted.

In sum, TMIA's arguments that the Commission has improperly grant-ed a hearing on matters already finally decided, and on which Mr. Husted has had an opportunity to be heard, are untimely, repetitive and clearly without rierit.

D. No Stay is Required or Justified Given the clear lack of merit in TMIA's claims, the Commission could summarily deny TMIA's request to stay the proceeding now before the

. Administrative Law Judge. Nevertheless, it may be noted that TMIA does not even attempt to make any showing that a stay of the Husted proceed-ing is warran ted. $ In view of the total lack of merit to TMIA's 12/ Cf.10 C.F.R. S 2.788(e).

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arguments and TMIA's failure to demonstrate any injury to it other than the relatively minor costs , and burdens of proceeding with discovery, there can be little doubt that such an attempt would fall short in any event. As a result, TMIA's motion for a stay of the proceeding should be denfe~d.

III. CONCLUSION Based on the foregoing, TMIA's Motion to Dismiss and for Stay should be denied.

Respectfully submitted, A Q

.corge Johnson Counsel for NRC Staff Dated at Bethesda, Maryland this 19th day of March,1986.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

. BEFORE THE COMMISSION

• In the Matter of )

)

GENEP.AL PUBLIC UTILITIES ) Docket No. 50-289 (CH)

NUCLEAR )

)

(Three Me Island Nuclear Station, )

Unit No.1 * )

J CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO TMIA'S MOTION TO DISMISS AND FOR STAY" in the above-captioned proceed-ing have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 19th day of March, 1986:

• Samuel J. Chilk *Herzel H. E. Plaine Secretary of the Commission General Counsel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555

• Morton B. Margulies

• Atomic Safety and Licensing Board Administrative Law Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555

• Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Louisc Dradford Washington, DC 20555 Three Mile Island Alert 1011 Green Street

• Docketing and Service Section

. Harrisburg, PA 17120 Office of the Secretary U.S. Nuclear Regulatory Commission Michael W. Maupin, Esq. Washington, DC 20555 Maria C. Hensley, Esq.

, flunton a Williams P.O. Box 1535 Richmond, VA 23212 Deborah B. Bauser, Esq.

Shaw, Pittman, Potts & Trowbridge 1800 M Street, NW Washington, DC 20036 j')YA J h t

%eorge EY Jdffff90n Counsel for NRC Staff