ML19250C150
| ML19250C150 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 10/31/1979 |
| From: | Hendrie J NRC COMMISSION (OCM) |
| To: | Berger D BERGER, D. |
| References | |
| FRN-44FR43128, RULE-PR-140 NUDOCS 7911080353 | |
| Download: ML19250C150 (2) | |
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4 October 31, 1979
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PROPD;iED RULE David Berger, Esq 1622 Locust Street Philadelphia, PA 19103
Dear Mr. Berger:
This responds to your letter of August 29, 1979, w.ch enclosures,
.concerning the Comission's detemination as to whether the accident at Three Mile Island constitutes an " extraordinary nuclear occurrence"
( ENO). More specifically, I, on the Commission's behalf, will address your petition for intervention, request for hearing, and request for extension of the 90-day period of 10 CFR 140.83.
The Commission's staff contained in paragraphs 1-7' question will consider the information panel now examining the ENO of your submission.
Your petition for intervention runs counter to the nature of the Eh0 detemination and the procedures the Commission has adopted for making that cecision. As required by 10 CFR 140.82(b), the Cominission has established a panel of its principal staff, chaired by the Executive Director for Operations, which is chartered to assemble data relevant to the Co nirsion's EN0 criteria. This panel has received nucerous public com.ents in response to the Federal Register notice announcing the determination, and it will consider these along with other sources of data. The panel Mill make its report to the Comission in November, at which time the report will also be published for public coment.
The Cow.ission will evaluate the staff's report and public coments thereon, and reach a decision based on these sources of infomation.
The END detemination is thus not in the nature of a femal adjudication or rulemaking, and does not involve parties holding adversary positions.
The intent of the EN0 procedures is to provide the Commission with an analysis of whetner the accident at Three Mile Island met the EN0 criteria, and to this end :naximum public participation in the form of written submissions has been, and will be, sought. The parties you represent will, of course, have a second opport' unity for coment when the staff's report is made public. Participation in this manner, rather than by way of intervention petitions, is more in keeping with the Comission's procedures.
The Ca: mission's ENO regulations also do not contemplate a public hearing.
Considering that public interest in this detemination is strong, however, the Com:ission has decided to grant your request for a hearing.
The Com.ission has ordered the ENO Panel, headed by the Executive Director for Oprations, to hold a one-day public hearing in or near Harrisburg, on a cate to te announced as soon as arrangements can be completed. The hearing will te conducted by members of the ENO Panel, and will be infomal. Merbers of the public wishing to speak at this hearing will I?75 093 7911080 353 i
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David Berger, Esq.
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receive instructions in the public announcement of the hea-ir.g.
Written submissions will also be accepted at the hearing. A trans:ript will be kept for later reference by the EN0 Panel.
Regarding your request that the ENO determination not be made "by default" by allowing the 90-day period of 10 CFR 140.83 to expire : can assure you this will not be the case.
In the Comission's view, -hat limitation does not apply where the Commission has initiated the ENO :etennination on its own motion. However, this regulation is admittedly arbiguous and could be read otherwise.
Accordingly, the Commission has extended the period to February 15, 1979. The Federal _ Register _ notice announcing this extension should appear shortly.
The Commission inter.ds to issue a written decision on the ENO question, explaining its reascrs for whatever finding is made, as soon as possible after receipt of the 5taff's report and further public comments.
If you have any further questions on the matters I have discussed, please feel free to contact the Office of the General Counse'.
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' Sincerely,
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'90s h M. Hendrie 1275 094
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su.. s Nuclear Regulatory Co$:: ission Decketing & Service Sec ion Washington, DC 20555 Re:
In the Mat er of.CROPOLITAN EDISON COMPAhY et a].., 2.ree Mile Island Nuclear Station
'Jni.t 2 Docket No. 50-320 Gentlemen:
.J.
Please find enclosef fc= filing, origina and.20 copies of the following:
fe, 1.
Submissien of Information,.$!ction for Leave to Intervene, and Regnest for Hearing in *dze above proueedings.
2.
Entries of Appearance for David Berger and Raymond L. Hovis.
Sincerely, g_Yh Da\\va.d B erger,
David Berger, P. A.
Plaintiffs' Liaison Counsel DB/mji Enclosures (63)
(Certified Mail) cc:
Executive Legal Dire tor, NRC (1 copy)
George F.
Trowbrid e, Esr. (1 copy)
Plain tif f s ' Couns e'
- C.A. No.79-432 (Motion only)
Midd.le District of Pennsylvania 1275 095
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UNITED STATES OF AMERICA f)
NLOLEAR REGULATORY COMMISSION In the Matter of Docket No. 50-320
!ETROPOLITAN EDISON COMPANY et al.
Three Mile Island Nuclear Station:
Determination regarding Extra-Uni 2
ordinary Nuclear Occurrence SUBMISSION OF'INFORMATION-MOTION FOR LEAVE TO IiirERVENE, AND REQUEST FOR HEARING 1.
The persons submitting.information herein (Informants) are as fcilows:
Gerald S. Fantasky and Vincenta L.
Fantasky James A.
Good and Bonita R.
Good James E.
Gormley Dynamics Products Corporation Modagraphics Corporation John Glise, Inc.
The Red Baron of America, Inc.
James D. Derr, Inc.
Robert T. Dunn and Annette Dunn Katherine Shirilla Michael Lyons and Judith Lyons Terrill Schukraft Constance Krebs Stoner,Jrf,andLindh Kenneth E.
Stoner Giant Food Stores, Inc.
White Shield, Inc.
Komet Co.,
Inc.
First Edition Book Stores, Inc.
Wolowitz, Inc., d/b/a " Young Image Shop" Free Car Wash, Inc., d/b/a " Gas and Wash" Cumberland Skadium, Inc., d/b/a "Cumberland Skadium" Harry Cramer, Inc., d/b/a "Harr)
- amer Oldsmobile" Aero Corporation, d/b/a " Budget Rent A Car" Michelle S aa]da and Terry Smith Earl J. MaJ61e and Dorothy Markle William Gorman and Beverly Gorman Russell C. Earhart and Grayce Earhar Herbert M. Packer, Jr.
John W.
Griffith and Jean B.
Griffith LeRoy I.
Sykes l'i75096
Monte H. E. Parfitt and Rose Marie Parfitt Walter J. Lachewitz', Jr.
American Vanguard Systems, Inc., t/a Mil 3 house Restaurant Sanuel W. Fleck and Louise E. Fleck David A. Barbarette Leonard J. Bourinski and Joyce E. Scurinski Joan E. Bretz Gary F. Ditto
. William E. Dunham and Patricia Dunham Espenshade Mcats Gilbert Freidmar; Mountainview Thoroughbred Racing Assn., Inc.
.Penn Photo, Ltd.
Pennsylvania National Turf Club, Inc.
The Sport Nit, Inc.
C. Robert Larsen and Marie K. Larsen Peter Davis and Carol A. Davis William Shields and Susan Shields Barry Buck and Toni Buck All cf the foregoing reside, resided, were or are located on March 28, 1979 within 25 miles of Three Mile Island Nuclear Station Unit 2 (OCC ), and on March 28, 1979 several reside, resided 'or were or are located in the immediate vicinity of said Unit.
All are persons with-in the reaning of 10 CFR 5140.3(g).
The foregoing constitute all of the Plaintif fs in the consolidated class action naming th' Licensee of TMI and others as defendants filed in the United Stai's District Ccurt for the Middle District of Pennsylvania, No.'79-432.
Said class action relates to the r.uTChar incident which took place en or about and after March 28, 1979.
2.
On July 8,1979, the Nuclear Regulatory Commission (Commission) initiated the making of a determination as to whether the above nuclear incident constitutes an extraordinary nuclear occurrence (ENO) and invited interested. persons to submit any information in their possession relevant to this determination.
Notice of this action was published in the Federal Register Vol. 44, No. 142, on July 23, 1979, anf appeared in media announcements.
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The notice published in the Federal Register stated, inter alia, that further provisions for public parti'cipation will be announced
. at a later date.
To the bes of Informants.' knowledge and belief, such prriisiens have not been annohnced.
In addition, Informants believe that at least one application has been made to the Commission by other persons to make an ENO determination. -
3.
Informants are interested persons because either they and their properties were exposed to radiation or to radioactive materials fro: the nuclear incident, because they lost the use and value of their properties, or they found it necessary to take protective action such as evacuation to reduce or avoid exposure to radiation er to radioactive materials.
Informants are interested persons because they are named, Plaintiffs in the above centioned class action en behalf of all And..viduals and entities within a 25-mile radius of TMI.
Important substantive and procedural rights in the class action may be affected by tne determination as to.
whether er not there is an ENO, which rights are found in portions of the Atc=ic Energy Act.
See, 42 USC S2210(n).
4 4.
Informants presently possess the folicwing information rel-ative to the criteria set forth in 10 CFR 5140.8 4 (a) and (b) :
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During the incident, in place monitors within the plant went off scale for three days and cyherwise ge.ve erroneous measurements, exceeding their capacity for measuring releases of radioactivity and radioactive materials.
This and othe'r facts led the Lessons Learned Task Force to report thati
... sampling of. plant gaseous-effluents, with laboratory analysis of samples subsequent to release, is the only valid techniqu'e for monitoring accidental releases of radiciodines and particulates."
NUREG-0578 p. A-38.
Published calculations to date have relied on a l'imited number of dosimiter read?-
s, have not given sufficient weight to the maximum dosimiter readings observed, the margin of' error in such measuring (2 vices or the conflict of interest of the Commission's contractor, Radiation Managenent Corporation.
Said corporation is part owned and financed by General Public Utilities, the parent company of the Licensee of TMI.
Published calculations do not give weight to any estimated, observed, possible~or calculated stack, vent and other releases applied to the meteorological dispersal formula for TMI, e.g.,
release of 13,000,000 curies of.Xel33 and readings of 3,000 nr/hr above vent stack observed on March 29.
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5.
In addition, it is believed that the Commission is in error in its statement at Vol. 44, No. 142, Federal Register, page 42120 that:
" Based or, the information available to the NRC Staff at this time, it appears that neither part of Criterion I is satisfied.
Both personal, exposures and property contamination are presently considered to be f ar below the levels specified in the tables set out above.
In the period March 2 8-April 7,' the approximated upper limit on whole body dose to a person in a populated area offsite has been calculated to be 100 millirets.
For the most part,
' property contamination levels measured approximated
' minimum detectable activity ' levels. "
The Commission may further be in error by not giving sufficient weight to its words in 10 CFR 5140.84(a), to wit:
...could have been or might have been exposed" to the doses. stated _ thereaf ter.
Published articles indicate that the actual releases and doses received may never be known.
6.
Informants presently pcssess the following information relative to the criteria set forth in 10 CFR 5140.85:
1775 100 f
5.
While the consolidated class action filed by Informants, in accordance with the Federal Rules of Civil Procedure, does not
. stata the amount of. damages claimed, several of the actions which have been consolidated originally pleaded damages in excess of 560
=illien dollars.
It is possible that all damages could exceed such c=ount.
Such damages include those outlined in 10 CFR 5140.85.
Payments of approximately 1.2 million dollars have heretofore been voluntarily paid to evacuees..This does not include loss of wages er any expenses of evacuees in families which did not have pregnant wcmen or pre-school children.
The latter expenses are of creat ::agnitude.
The insurers of the Licensee and others have indicited a willingness to pay loss of wages and are negotiating vier. Plaintiffs ' liaison counsel in the class action for further sums te be paid in settlement of other portions of the claim.
1 notice of cla'ss action will soon be sent to all members of the c_' asses and subclasses which are estimated to be approximately two million people for the purpose of indicating their willingness to participate in the suit and to indicate their damages.
Response
te this notice will be extremely valuable in indicating damages suffered by victims of the incident.
1775 101 e
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7.
In addition, it is believed that the Commission is in error in its statement at Vol. 4 4, No.142, Federal Register, page 43131 that:
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" Based on the information available to the N.:.C
. staff at this time, the only category of Criterion II damages possibly satisfied by the Three Mile Island accident is defined by (4), namely financial loss resulting from protective actions such as evacuation, appropriate to reduce or avoid exposure to radiation or radicactive material. "
The Commission will be in error if it does not interpret damages suffered by Informants and others to include loss of use of affected
. property and possibly total cost necessary to put affected property back into use.
See,10 CFR 514 0. 85 (b) (1) and (2).
8.
In view of the f act that Informants and those who they represent will be aff ected by the within proceeding, Informants desire to participate as parties and hereby petition for leave to intervene pursuant to 10 CFR 52.714, as well as any other precedures determined by the Commission for participation in this determination.
9.
Informants wish to intervene as it relctes to the submission and consideration of doses of and exco'sures to radioactivity and radioactive materials, submission and consideratics of damages to persons and property, as well as interpretation and affect of law and of the Co= mission's Regulations.
10.
Because of the importance of this dete=nination, Infor. nan b also request that a hearing be held in the vicinity of TMI for the purpose of allowing Informants and ether interested parties to participate.
The' Commission is also requested to extend its 90-day deadline (13 CFR S14 0. 83) so that it can make an actual determination and not a determination by def aul:.
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A g.y David Mrger
'Raymphd L.
Hov.s 1622 Locust Street 35 Fouth Duke Street Philadelphia, Pennsylvania 19103-York, Pennsylvania 17401 Attorney for Informan's Attorney for Informants Dated this 28th day of August, 1979.
Service is to be made en the' above attorneys at each of the above addresses.
!?75 103 8
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CO.T.CL'EALTn OF PENNSYLVANIA:
- SS cot.P.;TY OF YORK
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Before me, a Notary Public in and for said Co=nonwealth and
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County, personally appeared JAMES A. GOOD vho is a petitioner herein, who being duly sworn according to law, depeses and says that he is authorized to make this affidavit on behalf of petitioners, who are also acting as informants, and that
.he f acts set forth in the foregoing document are true and correct to the best of his knowledge, information and belief.
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.-r SWOF.S and subscribed to befcre me t'lis.f/ys day 1979.
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E CCMt.'!SSION EXPIRES QCTOSER 24,1931 IQff,ICRK CO PA.
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