ML19246C337
| ML19246C337 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 06/27/1979 |
| From: | Mulkey M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7907240304 | |
| Download: ML19246C337 (7) | |
Text
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In the Matter of:
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TOLED0 EDISON CC F aY AND
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Docket No. 50-396 CLEVELAND ELECTRIC ILLUMINATING COMPANY )
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(Davis-Besse Nuclear Power Station,
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Unit No.1 )
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NRC STAFF RESPONSE TO REQUEST FOR HEARING FILED BY STATE SENATOR TIM McCORMACK
!atroduction By a confinnatory Order dated May 16, 1979, the Commission directed that the Davis-Besse Unit t!o.1 (the facility or Davis-Besse 1) maintain its shutdown condition until certain short-term actions specified in the Order were found to be satisfactorily completedby the Director of the Nuclear Reactor Regulation. The Order also directed the licensees, Toledo Edison Company and Cleveland Electric Illuminating Co., to accomplish as promptly as prac-ticable certain long-term modifications specified in the Order. The Order provided furthce:
Within twenty (20) days of the date of this Order, the licensees or any person whose interest may be affected by this Order may request a hearing with respect to this Order. Any such request shall not stay the inmediate effectiveness of this Order.
By letter addressed to Chairman Hendrie and dated May 3,1979, State Senats.
Tim McConnack requested " assistance in answering our concerns about the Davis-Besse nuclear plant" and statad his " belief that the Davis-Besse N
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nuclear powered plant in Northern Ohio should not be fired again by nuclear fuels until the public of Northern Ohio and surrounding areas can be fully assured, through public hearings by your Nuclear Regulatory Commission in Northern Ohio, that" certain matters enumerated in the letter are resolved.
Senator McCormack's letter was forwarded to the Director of the Office of Nuclear Reactor Regulation, Harold Denton, for reply, and in his response dated June 1,1979 Mr. Denton informed Senator McCormack of the Conmission's May 16, 1979 Order and of the statement in the Order that any persen whose interest may be affected by the Order may request a hearing with respect to the Order by June 5,1979. By letter dated June 7,1979, Senator McCormack informed Mr. Denton that he had received Mr. Denton's June 1,1979 letter on that date (June 7) and that he believed that his May 3,1979 letter "did exactly what you indicated would have to be done in order to have a public hearing held."
The NRC Staff believes that Senator McCormack may be entitleu to a hearing upon satisfactory elaboration of hcw his interest may be affected by the Order. However, the Staff believes that certain of the enumerated matters set forth in the requester's May 3 letter are clearly beyond the scope of the Order and should be considered as requests for additional enforcement ac-tions pursuant to 10 C.F.R. 52.2C6 of the Commission's regulations.
Further, the Staff believes that the holding of any hearing arising from this request prior to the resumption of operation of the facility on terms consistent with the May 16 Order is unnecessary and unwarranted. As we set forth fully below, the Staff submits that the Commission should issue an Order (1) delegating to an Atomic Safety and Licensing Board the authority 3}60-311
, to determine whether Senator McCormack's request for a hearing is properly brought under the Order and whether he is a " person whose interest may be affected by the Order,"(2) identifying the scope of issues suitable for consideration in any hearing on the Order and, (3) confirming that Davis-Besse 1 will be permitted to resume operation under the terms of the Order without regard to the completion of any required hearing on the Order.
Argument I.
Procedural Disposition of Request for ll paring As set forth above, the enumerated concerns of this requester were set forth prior to issuance of the Order and the desire that they be treated as a request under the Order was transmitted two days after the expiration of the time allowed for requests for hearing under the Order. While some of the enumerated concerns appear to address aspects which relate, at least in part, to the matters covered in the Order, others clearly do not. The only assertion provided by the requester which could serve as a sufficient basis for finding that he is a person whose interest may be affected by the Order is his statement that he was writing in his " capacity as an Ohio State Senator and as a resident of Northeast Ohio."
The Staff does not believe the request is inadequate for nontimeliness or for fa, re to be properly brought under the Order. However, these matters and the adequacy of elaboration of interest should properly be resolved in ar ;djudicatory forum. Accordingly, the Staff recomends that the re-quester be given an opportuni.y to make a satisfactory showing cn the matter of interest and, if he so desires, to supplement his state:. ants explaining 360 3\\'
.c non timeliness. An Atomic Safety and Licensing Board should be established to rule on these matters and to conduct any hearing. This course of action is essentially identical te that set forth in the Commission's June 21, 1979 Order concerning a request for a hearing under the Order requiring that a similar Babcock and Wilcox reactor at Rancho Seco remain shut down pending satisfactory completion of identified actiors.
II. Designation of Issues The May 16, 1979 Order does not precisely identify the issues which can be heard in the event of a hearing on the Order. Consequently, the Staff sub-mits that it is now appropriate for the Commission to identify those issues, making it clear that any hearing will be limited to issues related to the enforcement action encompassed in the Order and should not reach any matters raised by the requester which call for other enforcement action outside the scope of the Order. With slight modification to reflect facility-specific differences in the Davis-Besse 1 Order, the issues designated by the Cummis-sion in its June 21, 1979 Rancho Seco Le der are appropriate for any hearing on the May 16 Davis-Besse Order. These subjects should include:
(1) Whether the actions required by subparagraphs (a) through (g) of Section IV of the May 16, 1979 Order are necessary and sufficient to provide reasonable assurance that the facility will respond safely to feedwater transients, pending comple-tion of the Ic ~;-term modifications set forth in Section II.
A contention challenging the correctness of t:.e NRC Staff's conclusien that the actions described in subparagrapns (a) through (g) have been completed satisfactorily will be 360 313
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e considered to be within the scope of the hearing. Howeve r, the filing of such a contention shall not of itself stay operation of the plant.
(2) Whether the licensees should be required to accomplish, as pmmptly as practicab'e, the long-term modifications set forth in Section II of the Order.
(3) Whether these long-term modifications are suffic:~.c to pro-vide continued reasonable assurance that the facility will respond safely to feedwater transients.
III. Effect of Request uoan Resumotion of Operation In a completely analogous situation, the Commission ruled on June 21, 1979, that resumption of operation of the Rancho Seco facility would not be stayed by the pendency of proceedings initiated pursuant to a request for a hearing brought under the May 7,1979 Order requiring that facility to remain shut down until certain short-tenn actions were satisfactorily completed. The Com-mission held that a requirement that completion of hearings precede restart of that facility is not compclied by law or the factual context involved.
The Staff submics that the same reasoning applies equally well to the re-quest for hearing filed by Senator McCormack under the May 16,1979 Order relating to Davis-Besse 1.
Such a course of action is clearly sound legally and as a matter of pblic policy. Consumer's Power Co. (Midland Plant, Units 1 and 2), 6 AEC 1082 (1973). See, porthwest Airlines v. CAB, 539 F.2d 748 (D.C. Cir.,1978).
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.S Conclusion For the foregoing reasons, the NRC Staff respectfully requests that the Commission (1) establish an Atomic Safet.' and Licensing Board to rule on the request for a hearing brought by Senator Tim McCormack pursuant to the Conmission's May 16, 1979 Order on the Davis-Besse 1 facility and to con-duct any such hearing, (2) delineate the issues suitable for any such hearing and, (3) confirm that Davis-Besse I will be permitted to resume operation under the terms of the Order without regard to the pendency of proceedings arising out of the request for a hearing on the Order.
Respectfully submitted, 7/4J ZLWg Marcia E. Mulkey Counsel for NRC Staff Dated at Bethesda, Maryland t.'.is 27th day of June,1979.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:
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TOLED0 EDIS0N COMPANY AND
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Docket No. 50-346 CLEVELAND ELECTRIC ILLUMINATING COM?ANY )
1 (Davis-Besse Nuclear Power Station,
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Unit No.1)
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CERTIFICATE OF SERVICE I hereby certi fy that copies of "NRC STAFF RESPONSE TO REQt!EST FOR HEARING FILED BY STATE SENATOR TIM McCORMACK" in the a' ove-captioned proceeding have o
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 Comission internal mail system, this 27th day of. June,1979:
- Mr. Samuel J. Chilk, Secretary Bruce Churchill, Esq.
U.S. Nuclear Regulatory Comission Shaw, Pittman, Potts t Trowbridge Washington, D. C.
20555 1800 M Street, N. W.
Washington, D. C.
20036 The Honorable Tim McCormack Ohio Senate
- Atomic Safety & Licensing Statehouse Board Panel Columbus, Ohio 43216 U.S. Nuclear Regula tory Commission Washington, D. C.
- 0555 The Honorable Tim McCormack 170 E. 209th Street
- Atomic Safety and Licen ing Euclid, Ohio 44123 Appeal Panel U.S. Nuclear Regulatcry Comission Mr. Lowell E. Roe Washing ton, D. C.
20555 Vice President, Power The Toleco Edison Company
. Docketing and Service Section Edison Plaza Office of the Secretary 300 Madison Avenue U.S. Nuclear Regulatory Comission Tol M o, Ohio 43652 Washington, D. C.
20555 t ca
- hN Marcia E. Mulkey
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Counsel for NRC Staff 3h
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