ML19275A332
| ML19275A332 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 07/02/1979 |
| From: | Trowbridge G METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | |
| References | |
| NUDOCS 7910040119 | |
| Download: ML19275A332 (21) | |
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In the Matter of i e METROPOLITAN EDISON COMPANY ) DOCKET NO. 50-289
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Three Mile Island Nuclear )
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LICENSEES' ANSWER TO COMMISSION ORDER DATED JULY 2, 1979 This answer to the Commission's order dated July 2, 1979, is filed on behalf of Metropolitan Edison Company, Jersey Central Power & Light Company and Pennsylvania Electric Company (Licensees) as co-owners of Three Mile Island Nuclear Station, Unit No. 1 (TMI-1).
The Commission's July 2 order requires that TMI-l remain in a shutdown condition until further order of the Com-mission, provides for a hearing to precede restart of the facility, and states that a further order specifying the proce-dutas to govern further proceedings in this matter will be issued within 30 days.
1100 145 On July 12, 1979, the Commission received a presenta-tion by its Executive Legal Director with respect to proce-dures for such further proceedings. While a number of pro-cedural alternatives were presented to the Commission, all of them were based on the explicitly stated " assumption" that the hearing prior to restart would be an " adjudicatory-type hearing".
?910040jgn e - 7.
As more fuliy set forth in Appendix A, we disagree with the assumption by the Executive Legal Director in his memorandum to the Commission dated July 9, 1979, that if a hearing is to be held prior to the lifting of the suspension order, it must be an " adjudicatory-type hearing." However, even utiliz-ing the assumption that an adjudicatory-type hearing is re-quired, the pre-hearing and hearing procedures and time sched-ule involved in the presentation by the Executive Legal Director are both unnecessary and contrary to the National and public interest.
The basic deficiency in the July 9 memorandum of the Executive Legal Director lies in its preoccupation with existing procedures designed primarily for initial licenting proceedings. We question whether the hearing procedures in subpart G of Part 2 are indeed applicable to a hearing after a suspension for the purpose of establishing the requirements for resumption of operation. But in any event, the Executive Legal Director has already advised the Commission of its authority to change procedural regulations by rulemaking with-out prior notice and comment under Section 4(a) of the Adminis-trative Procedure Act. The July 9 memorandum, however, gives the Commission no notion of the range of options available under that Act even for adjudicatory hearings. Nor does it mention or discuss any of the factors in this case which in the National and public interest dictate a departure from the procedures in a typical NRC initial licensing proceeding.
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Licensees do not disagree with -- and indeed Licensees endorse
-- the adoption by the Commission of procedures which will pro-vide an opportunity for input by State and local officials and interested members of the public, particularly those in the area of the plant, on the adequacy of the requirements of the Commis-sion for plant modifications, operator retraining or other fac-tors. However, Licensees believe that such procedures should also recognize and make provision for the National and public interest in early resolution of these matters and should also take cognizance of the realities of the other investigations and proceedings relevant to the subject matter of this proceeding. The Commission already has discretion to adopt procedures which will serve both purposes. In Gulf States Utilities Co. v. Federal Power Commission, 411 U.S. 747, 762 (1973), the Court went to some pains to emphasize
- the discretion the Commission must have in order to mold its procedures to the exigencies of the particular case ***."
We urge that the Commission exercise that discretion in this proceeding and, in Section II of this Answer, we submit specific suggestions on that score.
The oral presentation by the Executive Legal Director at the July 12 meeting set forth a detailed 13-step schedule to implement the procedural assumptions which he made. That schedule involves a minimum period of 335 days
!100 147
after publication of the Commission's Order establishing hear-ing procedures before an initial decision by an Atomic Safety and Licensing Board and an additional period of four months for review by the Commission. The Special Issue of Nucleonics Week of July 16, 1979 attributed to Commission Chairman Hendrie a statement that the period required would more likely be 18 months or two years and that the Commission "was in a bind created by the Atomic Energy Act in the sense that it had no middle ground between going the full hearing route or doing something that would take considerably less time, such as the orders to the other B&W plants." As previously indicated, we disagree with this view; we believe that the Commission does have discretion to adapt its procedures to the exigencies of this case and that there are sound public reasons for doing so, and that a " full hearing route" which complies with the Atomic Energy Act and the Administrative Procedure Act can reasonably be completed by the end of 1979.
Even if the Executive Legal Director were correct in his assumption that an adjudicatory-type hearing is required or appropriate in this proceeding, neither the Atomic Energy Act nor the Administrative Procedure Act require that (1) preparation for such a hearing involve extensive and lengthy procedures for interven ion, pre-hearing conferences, definition of issues or discovery or (2) the hearing procedures provide opportunities for cross-1100 148
examination of witnesses. The Administrative Procedure Act provides in this respect that:
"A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts."
(5 USCA S556(d)).
As was recently pointed out by the Court in Seacoast Anti-Pollution League v. Costle, 572 F2d 872, 880 (C.A. 1st, 1978),
cert. den. U.S. , 99 Sup. Ct. 94 (1978), the Administra-tive Procedure Act commits to the discretion of the administra-tive agency the decision whether to allow cross-examination and the party seeking to cross-examine bears the burden of showing that cross-examination is necessary. At most those Acts require that interested parties be provided with an opportunity to submit testimony.
In the majority of cases, the issues to be decided by the Commission will be illuminated by cross-examination and by pre-hearing discovery. But that is not true in this case. Indeed, one of the major difficulties of the procedures and schedules presented by the Executive Legal Director stems from the fact that it ignores the extensive fact-gathering and analytical investigations that are already under way by the Commission and others. It assumes that there is a necessity in this case for lengthy discovery activities, preceded by an even longer period for the filing of intervention petitions, 1100 149
answcrs thereto, amendments of such petitions, the conduct of a prehearing conference and the issuance of orders resulting from such prehearing conference. In the aggregate the schedule presented by the Executive Legal Director provides for 80 days after the issuance of the Order (expected about August 1) and prior to the commencement of discovery and a minimum of an additional 60 days for discovery.
In this case, there is not only no necessity in this case for such discovery activities; there is no role for the product of such discovery. Similarly, cross-examination will serve no significant purpose in this proceeding.
There are already well under way NRC staff investi-gations by the Division of Inspection and Enforcement and the Lessons Learned Task Force, as well as the independent investiga-tions by the NRC/TMI Special inquiry Group and the President's Commission on the Accident at Three Mile Island. Very extensive govarnmental resources are being devoted to these investigations.
Not only is it most unlikely that the discovery requests of in-tervenors in this proceeding could obtain and present additional data as a result of discovery that would be of use to the Com-mission; there is an inherent misallocation of resources in em-ploying discovery procedures in this proceeding to duplicate the assembly of data and information already in progress.
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In this connection, Licensees are prepared to estab-lish in the vicinity of TMI a document room where documents pertaining to the TMI-2 accident and the restart of TMI-1, which have been or will be supplied to the NRC Staff, the President's Commission and the Special Inquiry Group, will be available for public inspection. Information relating to the restart of TMI-1 will include interfaces between TMI-1 and TMI-2 and plans for isolation of the two units.
Another lengthy part of the schedule presented by the Executive Legal Director is concerned with the preparation for and the conduct of evidentiary hearings; in the aggregate, the schedule allots 100 days after the completion of discovery to these activities, with another 50 days for the preparation of proposed findings and replies.
Assuming, as we do, that the results of government investiga-tions will provide an adequate basis for informed public input, and that cross examination will serve no useful purpose not already served by the investigations, the opportunity for meaningful public input to the Commission's decision can be far less time-consuming.
What is here needed is a procedure which balances the public's legitimate interest in the requirements for re-start of TMI-l with the National and public interest in estab-lishing those requirements at the earliest practicable date.
An extended intervention, discovery, testimonial hearing and
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cross-examination procedure is not necessary or helpful to the first of those interests and is inconsistent with the second.
II We propose that instead of adopting the procedure outlined by the Executive Legal Director, the Commission proceed as follows:
- 1. The Commission should obtain from its Staff as soon as practicable recommenda-tions as to the measures which should be undertaken by Licensees as a basis for the resumption of operation of TMI-1. The Executive Legal Director's memorandum indicates that the Staff's submittal to the Commission by July 20, 1979 will identify the specific actions which should be completed by the Licensees prior to lifting the suspension.
- 2. The Staff recommendations should be made promptly available to the public and an opportunity made available for the submission of written comments within a 30-day period. All such written comments should be made publicly available.
1100 152
- 3. A review of the Staff recommendations and of Licensees' own recommendations should be conducted at public meetings held in the area of the plant.
- 4. Opportunities for supplementary written comments and rebuttal evidence by any interested party should remain open as the investigations of the NRC Staff, the President's Commission and the Special Inquiry Group are completed and the re-sults become available.
- 5. At an appropriate time the Commission could schedule the presentation of oral testimony to the Commission itself by State and local officials and by repre-sentative private groups or individuals.
Presumably such testimony would address further the Staff recommendations and re-sults of the investigations. Those oral presentations of testimony to the Commis-sion need not await completion of the last of the investigations and should be scheduled as soon as the basic facts sur-1100 153
rounding the TMI-2 accident have been made available to the public.-*/ Given the signif-icance of the matters here involved, we believe that the submission of oral testimony - but without cross-examination - to the Commission itself would provide an even better means for public imput to the Commission without unduly pre-empting the Commission's time. The allo-cetion of a few days for such oral testimony should be adequate for the purpose, assuming reasonable requirements for consolidated pre-sentations of similar interests.
- 6. Based on the recommendations of the Staff and the Licensees, the review of those rec-ommendations at public meetings, the results of the investigations, the written comments, rebuttal evidence and oral testimony received by it, the Commission should then determine and announce the measures necessary for re-start of TMI-l.
- / In Citizens for Allegan County, Inc. v. Federal Power Commission, 414 F2d 1125, 1134 (C.A.D.C. 1969), the Court specifically recommended utilization of procedures for the submission of written statements of position on issues of fact and law followed by an on-the-record conference con-ducted by a staff member or hearing examiner.
1100 154
The foregoing recommendations would be consistent with the action taken to date by the Commission. As the Executive Legal Director's memorendum, dated July 9, 1979, points out (at pages 7-8), the suspension of operation ordered by the Commission prior to affording the Licensees a hearing was the invocation of an extraordinary remedy which must be lifted once the bases for the Commission's invocation of such an extraordinary remedy no longer exist. In the same vein, Regulation 2.202(f) which permits a suspension order to become effective prior to affording the Licensee an oppor-tunity for hearing provides that such action shall be " tempo-rarily effective" pending further order.
If, despite the substantive opportunities thus pro-vided to the public to present their views by written comments, statements of position, rebuttal evidence and oral testimony to the Commission, an interested person wished to take the position that the TMI-l license should be suspended not-withstanding the fact that the requirements established by the Commission for lifting the suspension had been satis-fled, it would be appropriate to deal with his submittal as a request for action pursuant to Regulation 2.206. If it deemed it appropriate to do so, the Commission could direct that hearings in respect of such submittal could be held. As in the case of other B&W reactors, however, TMI-l would in the meantime be permitted to resume operations 1100 155
upon a determination by the Director of Nuclear Reactor Regu-lation that Licensees had complied with the Commission's re-quirements which removed the predicate for its extraordinary
- /
acticn in suspending the license.
The alternative procedures we propose should allow the Commission to establish the requirements for and make a decision on the restart of TMI-l by the end of 1979 con-sistently with ample opportunity for interested persons to present to the Commission informed judgments and their positions with respect to the facts and the law.
III As stated earlier, there are substantial national and public interests supporting the return of TMI-l to service at the earliest practical date that are compatible with a realistic (but not procedurally hidebound) determination that this is consistent with the public health and safety. These national and public interests in returning TMI-l to service were sum-marized in a letter, dated July 11, 1979, from Mr. William G.
Kuhns, Chairman of General Public Utilities Corporation, to
- / In Gulf States Utilities Company v. Federal Power Commis-sion, supra, the court specifically pointed out that an ad-ministrative agency is not required to hold a hearing on ob-jections in every case and that, when a hearing is to be held, the censideration of such objections may be deferred by the agency until after authorization of the relief sought, or it may grant authorization of a major part of the relief sought by the applicant and defer authorization of the balance of said relief for study of such objections.
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Chairman Hendrie. That letter was delivered on July 11 to the Commissioners, was distributed to persons in attendance at the Commission's July 12 meeting, but was not mentioned in the course of the Commission's discussions.
Keeping TMI-l out of service means that to obtain replacement power, oil must be imported and consumed at the rate of seven million barrels a year - the equivalent of enough fuel oil to meet the annual home heating requirements of more than 200,000 homes or the annual fuel requirements of more than 340,000 passenger vehicles. With the President's announcement of an annual limit of the amount of oil this country will import, this oil consumption can only come at the expens? of other domestic requirements.
In addition, the cost of purchased power while TMI-l is out of service amounts to $14 million a month, or $168 mil-lion per year. Shortly after the TMI-2 accident, rate proceed-ings were held before both the Pennsylvania Public Utility Com-mission and the New Jersey Board of Public Utilities. In those rate proceedings, the two Commissions recognized that the Li-censees were continuing to provide electric service to the ap-proximately 1.5 million customers (who, with their families, constitute approximately 4 million residents) in the 24,000 square mile service areas of the Licensees in Pennsylvania and New Jersey and that the rates charged to customers had to pro-vide for the reasonable cost of the replacement power purchased 1100 157
by the Licensees to provide such service. In that context, the two Commissions established levelized energy adjustment charges to customers for the 18-month period, July 1, 1979-December 31, 1980, predicated on the assumption that TMI-l would be restored to service by January 1, 1980.
If the restoration of TMI-l to service is delayed, the Licensees will have no choice but to seek increases in their charges to customers to cover the S14 million per month additional cost of purchasing such replacement power. (The Licensees have no means of financing or absorbing such increased costs.). For the average residential customer served by the Licensees, this would mean an increase in electric charges of approximately $42.50 per year. The economic interests of the four million residents of the Licensees' service areas clearly warrant the exercise by the Coramission of its discretion to employ procedures in this matter which protect all substantive aspects of the public health and safety but provide means for a timely resolution of the requirements to be met prior to resumption of opera-tions of TMI-1.
The Courts have traditionally permitted busy administrative agencies sub3tantial flexibility in formulat-ing their internal procedures and encouraged their efforts to eliminate duplicative action and repetitive hearings.
See, e.g., Chicago & N.W.R.Co. v. Atchinson, T. & S. F.R.Co.,
i100 158
387 U.S. 326, 341-3 (1967), Federal Power Commission v.
Tennessee Gas Co., 371 U.S. 145, 153-5 (1962). Permian Basin Area Rate Cases, 390 U.S. 747 (1968). The exercise by the Commission of such flexibility is especially appropriate here where the type of procedure discussed at the July 12 meet-ing could not be of material assistance in resolving the issues presented to the Commission.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By: M/ _ M /
'V Ge6rge F. Wrowbridge/
i100 159
APPENDIX A It is the purpose of this Appendix to address the
" assumption" contained in the memorandum, dated July 9, 1979, of the Executive Legal Director that the hearing to be held pursuant to the Commission's July 2, 1979 Order is a hearing
" required by statute", namely, Section 189a of the Atomic Energy Act, to which the adjudicatory provisions of the Administrative Procedure Act apply. We submit that this assumption by the Executive Legal Director is not well-founded.
We note at the outset a paradox between the legal position of the Commission's General Counsel and Executive Legal Director in the Rancho Seco proceeding and in this case. In Rancho Seco, they took the position that the Com-mission could and should lift an immediately effective sus-pension order whenever the licensee had complied with Com-mission requirements for restart established on the basis of Staff recommendations without a public hearing. (Memorandum from the General Counsel to the Commission, dated June 12, 1979.) In the case of TMI-1, however, the Executive Legal Director has in essence left the Commission with the impres-sion that there are no means of permitting public participa-tion in establishing the requirements for restart of TMI-1 without complying fully with the adjudication provisions of the Administrative Procedure Act. This result is neither sensible nor required by law.
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APPENDIX A, p. 2 Section 189a of the Atomic Energy Act requires the Commission to grant a hearing upon the request of any person whose interest may be affected in "any proceeding under this Act, for F . *** suspending *** of any license".
However, the proceeding instituted by the July 2, 1979 Order is not a proceeding for the suspending of the license. That suspension has already occurred as a result of the July 2, 1979, Order and a hearing pursuant to Section 189a is required only if the suspension is contested by the Licensee. (See Section 2.202(e) of the Commission's Rules of Practice.) In the absence of such a contest, the further proceeding directed by the July 2, 1979 Order is only to con-sider the requirements for lif ting such suspencion immediately upon a determination that the bases for such extraordinary action have been satisfactorily resolved. Thus, the current proceeding is not within the scope of Section 189a, which does refer to a proceeding to lift a suspension.
!100 161 In reaching its decision to lift a suspension, the Commission may proceed without a prior adjudicatory hearing - as it did in the case of the other B&W reactors -
or by way of an adjudicatory-type hearing, or by some combination thereof. The choice of the procedure to be employed rests within the Commission's discretion. The salient point is, however, that the choice to proceed by an
" adjudicatory-type" hearing does not bring the proceeding
APPENDIX A, p. 3 within the scope of Section 189a or mandate the applica-tion of the adjudication provisions of the Administrative Procedure Act.
A new proceeding to consider the suspension of the license could, of course, be initiated by an Order to Show Cause under Section 2.202 or in response to a request under Section 2.206 of the Commission's Regulations. The Order initiating such a new proceeding, which would be within the ambit of Section 189a of the Act, would specify the basis for the proposed action, allow the submission of responses, interventions and the like. It would not be immediately effective unless it provided, for stated reasons, that the public heath, safety or interest so require ~d. It is doubtful that such a showing could be made since the Licensees have heretofore voluntarily agreed in writing to provide significant advance notice to NRC before taking TMI-1 out of its present cold shutdown condition and had on June 28, 1979 submitted to the Commission for its approval a number of design and procedural changes and other measures, includ-ing a retraining program, which the Licensees proposed to accomplish prior to restart of TMI-1.
What has happened here is that the Commission has taken extraordinary action, in derogation of the Licensees' usual rights under Section 189a of the Atomic Energy Act and F 1'0 0 162
APPENDIX A, p. 4 the Administrc.tive Procedure Act, to suspend the license without any demonstration of compelling need to do so and has then assumed that Section 189a inhibits the Commission's ability to undo its extraordinary action. The contrary is true; the extraordinarf sanction must be eliminated as soon as the grounds upon which it was based no longer exist and the means are available to the Commission to make this deter-mination in a reasonable period of time.
In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978), the Court went to considerable pains not only to emphasize the breadth of the Commission's discretion in the conduct of rulemaking proceedings, but also to emphasize that, even apar't from the Administrative Procedure Act, the " formulation of procedures was basically to be left within the discretion of the agencies to which the Congress had confided the responsibility for substantive judgments" (at 524). The Commission should not lightly impose procedural restrictions upon itself which are not clearly mandated by statute.
In our view, the statement attributed by Nucleonics Week to Chairman Hendrie that the Commission had only two tools from which to choose for TMI-1 "a screwdriver or an axe" - is not correct. We believe that the Commission has a workbench full of tools and that the presentation by the 1100 163
A, APPENDIX A, p. 5 Executive Legal Director implied a narrowness of choice that is unsupported by law and inconsistent with the National and public interest.
1100 T64
UNITED STATES OF AMERICA NUCLEAR REGULATO.tY COMMISSION In the Matter of )
)
METROPOLITAN EDISON COMPANY ) Docket No. 50-289
)
Three Mile Island Nuclear Station, )
Unit No. 1 )
CERTIFICATE OF SERVICE This is to certify that a copy of Licensees' Answer to Commission Order, dated July 2, 1979, has been served on this 20th day of July, 1979, upon Mr. Howard Shapar, Executive Legal Director, Nuclear Regulatory Commission, by mail, first class, postage prepaid, and that copies of said Answer have on the same day been delivered by hand to the following:
Chairman Joseph M. Hendrie Commissioner Richard Kennedy 1100 165 Commissioner Peter Bradford Commissioner John Ahearne Samuel J. Chilk, Secretary Leonard Bickwit, General Counsel Docketing & Services (21)
SHAW, PITTMAN, PITTS & TROWBRIDGE By:
M -
M /
eorge 3 Tvowbridge /
July 20, 1979