ML19275A230
| ML19275A230 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 07/25/1979 |
| From: | Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| References | |
| NUDOCS 7910030356 | |
| Download: ML19275A230 (9) | |
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UNITED STATES NUCLEAR REGULATORY COMMISSION Ryg g
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@p7 MEMORANDUM FOR:
Chairman Hendrie 3
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Commissioner Gilinsky Com=issioner Kennedy c[
Commissioner 3radford Commissioner Ahearne c~
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Howard K. Shapar Lee v. w-x Executive Legal Direc:or s c.3, e g e, fcr Cperatic=s TH.RU:
Lee V. Gossick Executive Direc:cr for Opera: ions
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SU3J7.CT:
PROCT.EPINGS ON START-UP OF T'- m MILE ISLAND UNIT 1 On July 20, 1979, Metropolitan Edisen Company, Jersey Central Power & Light Cc=-
pany and Pennsylvania Electric Cc=pany (licensees) hled an answer to the Com=is-sion's Order of July 2,1979, which directed Licensees' Three Mile Island Unit No. I The facility to remain shut down until further cr:ier of the Cc=~*ics i:self.
Order recited the Co==ission's determination that it is in the public interest tha:
a hearing precede the restart of the f acility, and indicated :hnt the Commission will issue a further Order within 30 days specifying the procedures to govern further proceedings in this ma:ter.
The Licensees' Answer takes issue with much of the advice concerming procedural optiens which the Executive Legal Direc:cr (II D) has p cvided the Commissicn on this ma::er, and recommends ha: :he Cc==issien adep: procedures far =cre s:reamlined :han those provided for in i:s rules of practice.
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200RORGNAl't Attached for the Commissien's censideration are ELD's views en :he licensees' answer. As indicated in the attachment, we believe that many of the points made by licensees are misleading and errencous.
A ccpy of this memorandum has been served on counsel for the licensees.
Howard.E Sh$ par Executive Legal Director
Enclosure:
1.
NRC Staff Reply To Licensess' Answer To Commission Order Dated July 2,1979.
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NRC STAFF REPLY TO LICENSEES' ANSWER TO C0K!ISSION ORDER DATED JULY 2.1979 i by On July 20, 1979, Metropolitan Edison Company, Jersey Central Power & Light Com-pany and Pennsylvania Electric Company (licensees) filed an answer to the Com-mission's Order of July 2,1979, which directed Licensees' Three Mile Island Unit No.1 facility to remain shut down until further order of the Cocmission itself.
The Order recited the Comission's determination that it is in the public interest that a hearing precede the restart of the facility; and indicated that the Com-mission will issue a further Order within 30 days specifying the procedures to govern further proceedings in this matter.
The Licensees' Answer takes' issue with much of the advice concerning procedural options which the Executive Legal Director (ELD) has provided the Comnission on this matter, and recommends that the Comission adopt procedures far more streamlined than those provided for in its rules of practice.
The Staff believes that many of the points made by Licensees are misleading or erroneous.
I Hearino Richts The immediate license sus ension imposed by the Commission i:1 its July 2, h79 Order could be lifted without any prior hearing if the Comission could find that the public health and safety no longer required license suspension.
See Consumers Power Co. (Midland Plant, Units 1 and 2), 6 AEC 1082 (1973).
In fact we have so argued in response to a request for _a hearing in the proceeding sus-pending operation of Rancho Seco and Davis Besse.
However, the Cocaission may determine in this case that i' will not ma'Ke the safety findings necessary for reactor restart without having nad the benefit of a formal hearing record.
This decision is clearly within the Commission's authority--indeed, licensees concede Y
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as much. The Commission could, in theory, adopt some other form of public proceeding prior to start-up.
However, as explained more fully below, this could give rise to substantial confusion and, in any event, would not obviata the need for a formal hearing at some stage on the license suspension if an interested person requested one under section 189a. of the Atomic Energy Act
("Act").
Section 189a. of the Act does afford interested pers5ns a right to a formal hearing in "any proceeding...for the... suspending... of any license.
The matter at hand involves just such a proceeding. / Licensees argue that the " basic deficiency" in the ELD's July 9 memorandum is "its preoccupation with existing procedures" and raise the question of whether the hearing procedures in subpart G of 10 CFR Part 2 of the Commission's regulations are even applicable.
On this point there can be no doubt.
Subpart G governs "all adjudications initiated by the, issuance of an order to show cause, an order pursuant to 52.205(e), a ~ notice of hearingr, a notice of proposed action issued pursuant to 52.105, or a not. ice issued pursuant to 52.102(d)(3)." 10 CFR 92.700.
(Emphasisadded.)
In the ordinary course, the Notice of Hearing in this proceeding will initiate a proceeding governed by subpart G of 10 CFR Part 2.
It is true that the Commission nay mold its procedures to the exigencies of the particular case, Gulf States Utilit-ies Co.
- v. FPC, 411 U.S. 747, 752 (1973), but this discretion is not'so broad as to permit disregard of the Commission's own rules.
Vitarelli v. Seaton, 359 U.S.
535, 539-540 (1959).
Even if the rules were to be changed, the Commis'sion's discretion is not unfettered--the Commission will still have to take a "hard look" at problem areas.
City of Lafayette. Louisiana v. Securities & Exchange
-*/ A formal proceeding for the " amending" of a license may also be involved here.
See 10 CFR 550.59.
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P00R~0RG NAL Comission,454 F.2d 941, 954 (D.C. Cir.1971), aff'd Gulf St:ates Utilities Co.
- v. Federal Power Comission,'suora.
It is worth observing tihat we are unaware of any instance in the history of the Commission where an adjudication--whether licensing or enforcement--was conducted without opportunity for discovery or cross-examination.
As suggested above, the Con $ission could elect to separate the proceeding to be held prior to. reactor start-up (a proceeding'tifiat [oes not necessarily entail a formal hearing) from the proceeding on the suspendin:g of the Ticense (a proceeding that must entail a formal hearing).
In this wa.y, the i=ediate license suspension could be. lifted (if proper safety findings are made) pending completion of the formal hearing.
However, the Licensees' suggested hearing format does not distinguish between that proceeding necessary for start-up and that necessary for suspension and, as a result, suggests erroneously that the Comission has flexibility in areas where, as a matter of law, its options are in fact constrained by the Act and the Administrative Procedure Act ("APA").
To treat safety issues relevant to immediate reactor start-up in a procedural format that, differs from the procedural format associated wit:h formal proceed-ings on the license suspension could cause considerable confusion.
Would mem-bers cf the public clearly understand the nature of the two proceedings?
Would the record of the " informal" hearing held prior to start-up be included in the record of the formal hearing on the license sdscension? CouId the Commission decide whether the reactor could re-start without appearing t;o prejudge similar or related safety issues in the formal proceeding? Is it reasonable to l
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j expect citizens, public interest groups, a.1d others to participate effectively in two proceedings on the same reactor at essentially the same time?
Clearly the avoidance of confusion would by itself serve as ample justification for a Commis-sion decision to adopt a single hearing format.
Moreover, it is entirely within the Comission's province to conclude that the safety issues associated with re-start--issues that have prompted much concern and controversy--are such that only a formal hearing record could assure that the. issues would be fully explored.
The Succested Hearina Format Since the licensees' suggested hearing format was apparently intended to fully satisfy the requirements of section 189a. of the Act and the APA, it is fair to examine whether they measure up to these legal requirements.
We believe that in one critical area--cross-examination--they do not, and that in another critical area--discovery--they comply with minimum legal requirements b'ut threaten a less than complete airing of the issues.
Licensees suggest that discovery and cross-examination are unnecessary and will
" serve no significant purpose in this proceeding."
The only basis for this-remarkable assertion seems to be the prollferation of special investigations within and without the Comission.
There is nothing inherent in these investiga-tions, however, which would suggest that their end results would necessarily satisfy the reasonable questions which might.be raised by those members of the public wno might choose to participate in this formal proceeding. The APA requires that a party to a formal adjudicatory proceeding be granted the rignt to such cross-examination as may be " required for a full and true disclosure of the facts".
5 U.S.C. E 556(d); Seaccast Anti-Pollution Leacue v. Castle, 572 F.2d 872, 880 (1st Cir.1978).
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P00RORIGNAL We fail to see how the Comission can decide at this early stage, before the investigations have been completed, and before the testimony that may be the subject of cross-examination is even prepared or filed, that no cross-examination is required for a full and true disclosure of the facts. The Licensees are correct that the presiding officer has considerable latitude in deciding whether a particular line of cross-examination may be pursued.
However, this kind of determination by a presiding officer is closely tied to his or her direct supervision of the day-to-day conduct of the iroc[eding, and is made with
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intimate knowledge cf the issues, the testimony, and requested scope of cross-examination. The Cormission can no more dismiss all cross-examination at the outset as unnecessary than it can dismiss a safety concern without conducting some z.ctual safety evaluation.
The presiding officer at this proceeding will have a wide range of' precedural tools to ensure that cross-examination will not needlessly exter.d the proceeding.
As the Appeal Board has noted, a licensing Board may:
- 1) require in advance that an intervenor indicate wnat it will attempt to establish on cross-examination; 2) limit cross-examination if the Board determines that it will be of no value for development of a full record on the issues; 3) halt cross-examination which makes no contribution to developnent of a record on the issues; and
- 4). consolidate intervenors for purposes of cross-examination on the same point where it is apprcorlate to do so in accordance with the provisions of 10'CFR i 2.715a.
Northern States Power Co.
(prairie Island Nuclear Generating Plant, Un :ts 1 & 2), ALAB-252, 8 AEC 1175, aff'd, CLI-75-1, 1 NRC 1 (1975).
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P00R D E M L In affirm 1ng this decision regarding the right of cross-exannnation, subject to reasonable limitations, the Comission stated:
... we wish to underscore the fundamental importance of meaningful public participation in our adjudication process.
Such participation, performed in the public interest, is a vital ingredient in the open and full consideration of licensing issues, and in establishing public confidence in the sound discharge of the important duties whien have been entrusted to us.
It cannot be disputed that only if our rules provide for, and are perceived by all to allow,
" full exploration of tne safety and environmental aspects of each [ proceeding]" will the objective of such meaningful participation be achieved.
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2),,
CLI-75-1,1 NRC 1 (1975) (footnote omitted).
Finally, as to discovery, it must be conceded that the APA dces not require discoYery.
However, the Commission's rules in 10 CFP. Part 2 do allow for dis-covery.
There is no basis at this point fcr the asser. tion that discovery will serve no purpose.
It i[at least possible that, despite ' est efforts by all to b
provide all relevant materials to document rooms and the parties, some important infor ation will turn up en discovery that was simply overlooked or erroneously thought to be irrelevant.
It is also unclear that a period of time for discovery would necessarily delay the proceedings.
In fact, we expect rnost or all of the discovery to be conducted concurrently with the technical safety reviews.
Conclusi on At bottom, Licensees' argument is simply a plea to the Comission to change its mind--to treat Three Mile Island Unit i like other Ba'a' reacters, per nitting I
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P00R~0RGINAL resumption of operation upon the Director of NRR's finding that the required corrective actions had been taken. The Commission chose in its Order of July 2 not to follow this course, but rather to have a hearing precede the restart of THI-1.
While the Commission is free to reconsider that decision, there are ample grounds that support the Comission's original views. Moreover, ir.
several respects the Licensees' suggested femat fails to comply with the law.
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