ML19340D315
| ML19340D315 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 12/18/1980 |
| From: | Bradford G, Cunningham J, Hartnett M, Hossler D, Sholly S AFFILIATION NOT ASSIGNED, ANTI-NUCLEAR GROUP REPRESENTING YORK, NEWBERRY TOWNSHIP TMI STEERING COMMITTEE, PEOPLE AGAINST NUCLEAR ENERGY, THREE MILE ISLAND ALERT |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML19340D316 | List: |
| References | |
| NUDOCS 8012300264 | |
| Download: ML19340D315 (45) | |
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D j.3 7 1 UNITED STATES OF AMERICA e .e -
7 NUCLEAR REGULATORY CO.k' MISSION \(Aa _ {p Q/
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. BEFORE THE COMMISSION /
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In the Matter of ) '
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METROPOLITAN EDIS0:1 COMPANY, ET AL. ) Docket No. 50-289
) (RESTART)
(Three Mile Island Nuclear Station, Unit No. 1)
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INTERVENOR'S JOIMT RESPONSE IN OPPOS! TION TO LICENSEE'S MOTION FOR RECONSIDE ATION OF THE CCMMISSION'S ORDERS OF 7/2/79 AND 8 '9/79 .
(18 December 1930) is '
Introductica The Ccmnission has before it 3 .*equest fecm the Licensee to reconsider and acdify its 7/2/79 and 8/9/79 Orders in this docket, orders pertaining to the restart of TMI-1. In an Order dated 12/9/80, the Commission extended the respcnse date for this matter until 1/6/81.
The parties joining in this response note for the record that this request is most unusual . We would have expected such a request
, to come in the form of a motion from Licensee's counsel. The request before the Commission not cnly is not in the form of a motion, but 3 comes from the President of General Dublic Utilities rather than _ from Metropolitan Ec'isen Company, the Licensee. The letter from Mr.- Dieckamp does, however, nave the substance of a motion and appears to be in the
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process of being considered by the Commission as a motion for reconsideration (although the letter does not invoke any Commission regulation, for instance 10 C.F.R. I 2.771) .
The undersigned parties therefore file this joint' response in opposition to Licensee's motion. We file this response jointly solely in the interests of efficiency and due to shared interests in this matter.
Nothing in this response should be construed to represent a consolidation by the parties on any other issue or matter.
DATED: 18 December 1980 RESPECTFULLY SUBMITTED,
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, /, .f Jordan Cunnin.qhanr,--Jsq. , counsel for Newberjy' Township TMI Steering Committee' V
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Steven C. Sholly, Inte nor Pro se MM 0nhWn W Mary Hartnett, President of Three Mile Island Alert, Inc.
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! il Bradford, hrgal repres9ritative for Anti-Nuclear Group Rekesenting l York nufk kn." d Donald Hossler, President of i
l People Against Nuclear Energy
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JuMth Johnsrud, legal representative for the Environmental Coalition on Nuclear Power
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- 1. Licensee's motion for reconsideratier. is untimely in the extreme and contains no facts wh1ch were not known to the Licensee at least five montns crior to the date of tne motion, and, in most cases, over a year prior to tne date of the motion. Further, the motion utterly falls to adorcss its untimeliness. Having therefore talled to ille a timely motion, and havinq further failed to justify at all the untimeliness of its motion, Licensee is in no position now to complain that the outcore of tne 7/2/79 and 8/9/79 Commission Orcers is not to its liking.
The Commission's 7/2/79 Order _ invoked what has been referred to by the Executive Legal Director as an " extraordinary remedy" by ordering the continued shutdown of TMI-1 following the accident at TMI-2. The basis for that action, as stated in the Order, was a determination by the Commission that:
"In view of the variety of issues raised by the accident at the Three Mile Island Unit No. 2 facility,'the Commission cresently lacks the requisite reasonable assurance that the same Licensee's Three Mile Island Unit flo.1 facility, a nuclear power reactor of similar design, can be operated without endangering the health and safety of the public." (See Commission Order, 7/2/79, page 1).
The 7/2/79 Order was made immediately effective, in effect, l suspending the. operating license of TMI-I until the bases for suspension (to be spelled out in what became the Commission's Order and Notice of Hearing, dated 8/9/79) were resolved. The 7/2/79 Order further specified the Commission's determination that the public interest in the matter required a hearing prior to restart of TMI-1.
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w It is worth noting that on the day the Commission's Order was issued, the Commissioners received a letter from Licensee's counsel, George F.* Trowbridge, Esquire, setting forth the Licensee's views on the Commission's 7/2/79 Order and suggesting a procedural framework for the hearings mentioned in the Order (See letter to Joseph Hendrie frcm George F. Trowbridge, Esq., dated 7/2/79, attached to this response as Appendix 1). The Licensee's views on the restart hearing were kncwn by the Commission, therefore, well before the issuance of the 8/9/79 Order and Notice of, Hearing. The 7/2/79 letter from Mr. Trowbridge to Chairman Hendrie notes:
"The purpose of this letter is to request that GPU have an opportunity to review and comment on any proposed order with respect to the scope and conduct of the hearing and the Commission's decisional process. The Commission's determinations on these matters can make a difference of many months in the lenatn of the croceedino."-(See 7/2/79 Tetter from Troworiege to Hendrie, page 1, emphasis added).
In the letter, Licensee's counsel offered te naet with the Commission staff or furnish written comments within 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br /> on any proposed order, It is quite clear that even at this' early time in the restart hearing process, the Licensee was well aware of the importance of the Commission's Orders and understood the possible impact of those Orders. If Licensee disagreed with the Commission's approach, Licensee could have filed, pursuant to 10 C.F.R. 5 2.771, a motion for reconsideration within ten days of the 7/2/79 Order.
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Licensee filed no such motion.
Instead, a letter was sent from W. G. Kuhns (Chairman of GPU Service Corporation) to Chairman Hendrie dated 7/11/79 (Sge letter to Joseph Hendrie from W. G. Kuhns, dated 7/11/79, attached to this respanse as Appendix 2).
The Kuhns' letter sets forth Licensee's concerns over the economic impact of the Commission's 7/2/79 Order and forthccaing hearing orGUr on Licensee's financial standing. The letter notes Licensee's concern about its "more than 4 million residents of Pennsylvania and flew Jersey served by the GPU companies" and noted that the replacement power for TMI-1 was costing the Licensee "on the order of $14 million a month." Again, it is very clear that Licensee understood the economic importance of the Commission's Orders orf or to the issuance of the 8/9/79 Order and flotice of Hearing.
On 7/20/79 the Licensee filed a document with the Commission entitled " Licensee's Answer to Commission Order Dated July 2,1979" (copy attached to this response as Appendix 3). Although styled as 1
a response to the 7/2/79 Order, in reality the filing addressed a memorandum from the Executive Legal Director to the Commission dated l
7/9/79'and a subsequent discussion on the record on 7/12/79 (Se,e_
memorandum to the Conmissioners from Howard K. Shapar, dated 7/9/79, attached to this response as Appendix 4). The Licensee's answer to the 7/2/79 Order proposed the extraordinary concept that a hearing i
l could be held prior to restart without the opportunity for discovery l
{ or for cross-examination of witnesses. The 7/20/79 " answer" references j
the Kuhns letter in discussing the economic impact of the hearing l
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6-(noting, for example, that the continued shutdown of TMI-1 ~would cost the Licensee $168 million per ye.ar in replacement power costs, or an increase of approximately $42.50 in the annual electric bill for the average residential customer). The " answer" also extensively discusses Licensee's views on the hearing, both its scope and conduct. In an appendix to the " answer" discusses whether or not, in Licensee's view, the hearing before restart is required. Again, the Commission had before it at an early date (prior to issuance of the 8/9/79 Order and Notice of Hearing) Licensee's views on the structure of the hearing and the economic costs of the hearing process to the Licensee. Also, the Licensee, in the " answer", ackonwledges once again its knowledge of the costs to it of the hearing process and its knowledge of the procedures the Commission was considering imposing on the proposed hearing.
The NRC Staff responded to the Licensee's " answer" in a memorandum dated 7/25/79 from Howard K. Shapar to the Commissioners. The memorandum notes that the Staff feels that "many of the points made by licensees are misleading and erroneous", referring to the Licensee's " answer" to the 7/2/79 Order. The Staff's views are further set forth in the "NRC Staff Reply to Licensees' Answer to Commission Order Dated July 2,1979" which is attached to the Shapar memorandum to the Commissioners dated 7/25/79 (See memorandum to the Commissioners from Howard K. Shapar, dated 7/25/79, with attached Staff Reply to Licensee's " answer", attached to this response as Appendix 5). The Staff's reply notes that:
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"At bottom, Licensees' argument is simply a plea to change its mind--to treat Three Mile Island Unit I like other B&W reactors, permitting 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, bit rather to have a hearing precede the restart of TMI-1. While the Commission
, is free to reconsider that decision, tnere are ample grounds that support tne Commission's
, original views. Moreover, in several respects the Licensees' suggested format fails to comply with the law." (See, Staff Reply, pages
- 6 and 7, dated 7/25/79, emphasis added)
Despite the obvious invitation to the Licensee to move the Commission to reconsider its 7/2/79 Order, Licensee again filed no request for reconsideration. Instead, Licensee filed a response to the NRC Staff Memo and Reply of 7/25/79 (See " Licensees' Response to NRC Staff Memo and Reply of July 25,1979", filed 7/26/79, attached to this response as Appendix 6). In this " response to the Staff's reply to Licensee's response to the Staff's memo concerning the Licensee's views on the Commission's 7/2/79 Order,"
the Licensee reiterates its economic concerns about the hearing process and reiterates its views on the conduct and process of a hearing prior to restart. By this point, though, "The Licensees have accepted and endorsed the Commission's decision to have a hearing precede restart," (See Licensee's response to Staff memo, dated 7/26/79, page 7). Again, the Licensee had forcefully stated its views on both the hearing process and the economic consequences of that process, and again the Commission had Licensee's views before
- it prior to issuing the 8/9/79 Order and Notice of Hearing. Yet, despite having attended Commission meetings where these issues were discussed, and despite having presented its differing views to the Commission on several occasions, the Licensee failed to file a motion for reconsideration or seek any other type of formal or informal relief from the Commission.
Once the 8/9/79 Order and Notice g Hearing was issued, there could have been no reasonable doubt about Licensee's awareness of the implications of the items in the Order. The 8/9/79 Order provided that the Licensee could respond by 9/4/79 (presumably this was extended when the filing deadline for petitions to intervene was extended), and Licensee submitted its response on 9/14/79 (See " Licensee's Answer to the Commission Crder and Notice of Hearing Dated August 9,1979", dated 9/14/79, attached to this response as Appendix 7). Licensee's " Answer" to the 8/9/79 Order again
! restates the Licensee's financial concerns about the hearing process. The
" Answer", however accedes to the Order:
" Licensee will appear at the hearing and will address the necessity for and sufficiency of the recommended actions." (See Licensee's
" Answer" at page 2)
The " Answer" notes the Commission's rejection of Licensee's hearing-related suggestions:
"From the outset of the Commission's deliberations which resulted in the August 9 Order, the TMI-1 own.ers have recognized the desirability of providing a forum for public participation in the decision on restart of TMI-1. However, in
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several communications to the Commission prior to the issuance of the Commission's August 9 Order and Notice of Hearing the TMI-1 owners argued strongly that, in establishing procedures to be employed for a public hearing, the Commission should adopt those procedures which would allow the earliest possible decision on restart of TMI-1. . .The Commission elected to apply to the hearing essentially the same procedures which accompany the initial issuance of construction permits and operating licenses, but at the same time indicated its expectation that consistent with a fair and thorough nearing
' and decision the Board would conduct the proceeding expeditiously." (See Licensee's
" Answer" to 8/9/79 Order at pages 3 and 4)
Despite arguing that the Staff had misrepresented its position regarding the Commission's treatment of TMI-1 vs. other B&W reactors (in Licensee's filing of 7/26/79, the Licensee accepted and endorsed the Commission's intent to hold a hearing prior to TMI-1 restart),
Licensee turned around its position in its answer to the 8/9/79 Order and noted:
"The Commission has singled out TMI-1 among all B&W operating reactors in requiring a lengthy public hearing on all of the NRC Staff's recommended requirements and in suspending operation of TMI-1 until both an Atomic Safety and Licensing Board and the '
Commission itself have passed on the adequacy of those requirements. In contrast other B&W owners had their licenses suspended only for the brief period necessary to accomplish those few plant modifications and other measures considered urgent by the Commission in the light of the TMI-2 accident and their licenses were promptly reinstated upon comp?etion of those measures. Other less urgent requirements will still have to be met by other B&W reactors but they will be permitted in the meantime to continue in operation.
The costly delays mandated by the Commission's
decision, resulting from the suspension of operation pending further definition and accomplishment of a long list of Staff requirements and their consideration in public hearings structured along the lines of a conventional NRC licensing proceeding, will unfairly burden Licensee's consumers and investors." (See Licensee's " Answer" to 8/9/79 Order, pages 4 and 5)
Despite these statements, Licensee appears to accede to the Commission Order, noting ia the next sentence following those quoted above:
"This burden must not be aggravated by allowing the scope of the hearing to expand beyond those issues mandated by the Co=nission's Order and Notice of Hearing. . . tie urge the Board to confine this proceeding strictly to the issues directly related to the TMI-2 accident and to the question of what measures need be taken in the light of that accident to assure the continued safe operation of TMI-1." (See Licensee's
" Answer" to 8/9/79 seder, page 5)
Despite Licensee's statements of " unfairly" burdening i Licensee's customers and investors and despite a final realization l
thate the Commission had adopted an approach to the hearings which the Licensee had previously argued was not necessary or required, I
the Licensee failed to file motions to request the Commission to l
l reconsider either the 7/2/79 or 8/9/79 Orders.
( It is quite clear that the Licensee could and should have
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i filed motions for reconsideration on both the 7/2/79 and S/9/79 f.
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11 Orders. Yet, in the end, Licensee explicitly and implicitly acceded to those Orders and failed to make an reconsideration motions to the Board or the Commission. If Licensee disagreed with the Commission's Orders, such motions were necessary to protect the Licensee's interests. By failing
! to file such motions in a timely manner, especially considering that the Licensee had known and quite vividly expressed its knowledge of the Orders
. and their economic consequences for the Licensee, the Licensee failed utterly to protect its interests in this matter. Licensee, knowing the content of the Orders, and,having stated the cor. sequences of those Orders to the Commission itself, was in an excellent position as of 9/14/79 (the date of its response to the 8/9/79 Order) to file a motion for reconsideration, having essentially all the information it required for such a filing. Licensee could have made essentially the sama points ,
as it made in the 12/1/80 motion on the lath of September,1979, over a year earlier than its current motion. Licensee failed to do so.
Even granting grossly inappropriate discretionary leeway to the Licensee and assuming that the Licensee did not appreciate the full impact of the Commission's Orders, it becomes clear upon reflection that the Licensee has continued to fail to protect its own interests in this matter. Assuming that the Licensee had decided to go along with the schedule as laid out by the Commission in the 8/9/79 Order, it is useful to examine " checkpoints" throughout the process at which the Licensee could have become aware that the schedule was slipping, and that the Licensee could then request relief from the Commission or the Board.
Similarly, it is useful to examine instances where decisicns by the Soard could have alerted the Licensee that its understanding of the 8/9/79 l
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s Order was being altered by Board rulings. and again this could have alerted the Licensee to file requests for relief with the Board or the Commission.
The first instance involves both examples cited above. The l First Special Prehearing Conference was held beginning on 11/8/79. The 8/9/79 Order set this date as 75 days following the publication of the 8/9/79 Order, or approximately 10/24/79. Therefore, the First Special Prehearing Conference took place approximately 15 days late. The Licensee made no motions regarding this schedule, nor did it make any request for relief from the delay imposed thereby. In addition, the 8/9/79 Order i
anticipated the publication of the First Special Prehearing Conference Order five days a'fter the conference was over. In fact, publication of the First Special Prehearing Conference Order did not take place until 12/18/79, about a month after the conference and some six-to-seven weeks behind the schedule in the 8/9/79 Order. Again, Licensee made no request for relief.
The subject matter of the First Special Prehearing Conference dealt with, inter alia, the scope of the proceeding. Arguments were advanced by all parties at the conference, including the Licensee. When the First Special Prehearing Conference Order was published on 12/18/79, it was clear that the Licensee's views on the scope of the hearing had been rejected by the Board, and that the scope of the hearing would be broader than Licensee had anticipated. In commenting on the scope issue, the Board stated:
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"In sum, we view licensee's position to be that this board may censider only those individual factual issues which are expressly stated in the Commission's August 9 order, or in the documents referenced in that order. For the reasons stated below we do not accept that argument. . . We believe the charge to consider the sufficiency of the recommended short and long term actions clearly draws the scope of this hearing beyond the limits urged by the licensee. . . We see an additional fallacy in
. licensee's position. To accept its view, we would have to conclude that as of the August 9 order and notice of hearing, the Commission already had in mind all possible factual issues to be considered in the hearing, and that the Lessons Learned report was the final word on the subject.
This is not the case, of course. . . We have resolved doubts in favor of including safety-related i m is." (See First Special Prehearing Conference GMer, pages 5 through 8)
In addition, the Board deferred ruling on issues of combustible gas control, psychological stress, and emergency planning. This should also have alerted the Licensee to potential for delays in the proceeding.
The combustible gas issue has been the subject of numerous orders, rulings and reconsiderations. The psychological stress issue was not certified to the Commission until February 22, 1980, and was not voted upo'n by the Commission until very recently. Emergency planning contentions have finally been ruled upon at two different times following two substantive revisiens of Licensee and state and county emergency plans.
Licensee neither brought these delays to the attention of the Board, nor filed for relief from the delays inherent in the above matter:.
Licensee failed to protect its interests.
There are other " checkpoints" at which the Licensee should have been well aware of the delay in the proceeding, at which point this should have prompted Licensee to seek relief from these delays. In summary.
these key times are:
- a. Completion of general discovery in March 1980, some two months behind schedule.
- b. Issuance of Staff's SER (NUREG-0680) in June 1980, some six months after its projected release date.
i c. The filing of direct testimony on 9/15/80, some eight months behind schedule.
- d. The beginning of the hearings on 10/15/80,some eight months behind the Commission's proposed schedule as set forth in the 8/9/79 Order.
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At none of these key times did Licensee acknowledge the delays and file requests for relief from the Board and/or the Commission. Licensee i
has consistently and totally failed to protect its interests in this matter.
Another test of, the Licensee's moti6n and its timeliness is the examination of the dates of the documents relied upon by the Licensee in support of its motion, to determine the Licensee's diligence in making its motion for reconsideration. The following examples are illuminating:
- a. Licensee's motion cites the Transcript of the l restart proceeding at page 2436. Licensee fails to mention that this transcript was for the August 1980 Prehearing Conference, some 3-4 I months prior to the Licensee's motion. The Prehearing Conference was itself some seven
- to eight months behind the Commission's schedule as published in the 8/9/79 Order.
- b. Licensee references a 9/17/80 Memorandum and Order without mentioning that the 9/17 Memorandum and Order was issued in 1980, and not 1979 as may have been implied.
- c. Licensee relies upon the report of the Senate Subcommittee on Nuclear Regulation without citing specific language from the report supporting its position or referencing the language in its motion (making Licensee's reliance upon the report impossible to address). The report was published
- in June 1980, six months before Licensee's motion for reconsideration was served.
- d. Licensee's motion also cites the GA0 report, "Three Mile Mile Island: The Financial Fallout,"
without mentioning its date of publication--
7/7/80. This is five months before Licensee's motion for reconsideration.
- e. Licensee cites the SER (NUREG-0680). NUREG-0680 was issued in June 1980, six months before Licensee's motion was served.
. It is easily seen that Licensee relies on support for ics motion which is all at least five months old. In some cases, as will shortly be obvious, Licensee notes argumente in its 12/1/80 motion which are nearly identicil to statements and arguments made before the 8/9/79 Order was even issued.
Addressing Licensee's arguments made in the 12/1/80 motion, and comparing them with prior statements, it becomes clear that the 12/1/80 motion is based on information which Licensee has had at its disposal for five to eighteen months:
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, ARGUMENTS IN 12/1/80 MOTION PREVIOUS ARGUMENTS MADE
- 1. "The consequence of those 1. "We urge that, in establishing orders has been to severely those procedures /the hearing penalize the four million procedures _/, consideration be residents of our service given to the economic interest areas and our hundreds of of the more than 4 million residents thousands of investors." of Pennsylvania and New Jersey served by the GPU companies in permitting restart of TMI-2 as soon as that is consistent with the
. Commission's obtaining reasonable assurance that TMI-1 can be operated without endangering the health and safety of the public." (Letter from Kuhns to Hendrie, 7/11/79, page 1)
"If the restoration of TMI-1 to service is delayed, the Licensees will have no choice but to seek increases in their charges to customers to cover the 514 million per month additional cost of purchasing such replacement power." (Licensee's Answer to 7/2/79 Order, page 14, dated 7/20/79)
"We particularly emphasized the heavy burden which will be borne by the four million residents of the service areas served by the
! TMI-1 owners and the investors in the securities of those companies..."
i (Licensee's Answer to 8/9/79 Order, page 3 dated 9/14/79) l l
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- 2. "There is no legal require- 2. "
. . . we disagree with the assumption ment that the Commission employ by the Executive Legal Director in his the formal procedures which it memorandum to the Commission cated has ordered prior to authorizing July 9,1979, that if a hearing is to TMI-1 restart." be held prior to the lifting of the i
suspension order, it must be an
' adjudicatory-type hearing. '"
- (Licensee's Answer to 7/2/79 Order, dated 7/20/79, page 2) l t
- 3. "Instead the Commission chose 3. "The Commission has singled to treat TMI-1 differently than out TMI-1 among all B&W operating all other affected plants and reactors in requiring a lengthy ordered a full adjudicatory public hearing on all of the hearing with a further require- NRC Staff's recommended require-ment for specific approval by ments and in suspending operation the Commission itself prior to of 11-1 until both an Atomic res tart. " Safety and Licensing Board and the Commission itself have passed on the adequacy of those require-ments." (Licensee's Answer to 8/9/79 Order, dated 9/14/79,
- l. page 4)
All of these arguments were made no later than 9/14/79, nearly fifteen months prior to the service of Licensee's motion for reconsic'eration.
Licensee has been aware of its precarious financial position for many months as a result of its involvement in a continuing series of rate hike requests before both the Pennsylvania Public Utility Commission and the New Jersey Board of P,blic Utilities. TMI-2 was removed from the Licensee's rate base on 4/19/79 and TMI-1 was removed from the rate base on 5/9/80. Licensee has filed several rate hike requests,. the most recent being in excess of $75 million. Licensee cannot by any reasonable
! stretch of the imagination claim that it is not aware and, in fact, has been aware for nearly a year of the conditions which it claims led to the j filing of its motion for reconsideration.
Licensee has failed to address the lateness of its motion. In fact, the motion appears to presume that Licensee has the right to file motions for reconsideration of Commission Orders at any time it chooses, without any consideration of the prejudice this may bring upon the other parties to the proceeding. In fact no such right exists absent permission from the Commission to late-file such a motion. No such permission has been i
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sought by the Licensee, and, in our view, it would be an abuse of discretion for the Commission to grant such permission in view of the facts set forth in this response.
Licensee has demonstrated no good cause for the Commission to accept its late-filed motion for reconsideration. Moreover, a considerable body of evidence demonstrates that the. Licensee could have filed a nearly identical
. motion in September 1979, nearly fifteen months ago, but failed to do so for unexplained reasons. We speculate that this had more to do with the prevailing climate of political and public opinion in that time period, but note that the Commission's regulations do not recognize these exigencies--
Licensee has failed to protect its interests in this matter for fifteen months and has presented no arguments which should compel the Commission to overlook the Licensee's lack of diligence in protecting its interests.
Licensee's motion for reconsideration should be denied on lateness grounds alone, but there are other significant reasons why the motion should be denied.
- 2. Licensee has been aware of orovisions in the 8/9/79 Order which govern conditions under wnicn TMI-1 can restart crior to tne completion of litication on the long-term items. Licensee nas
( failed, throuan acts of commission and omission, to assure tnat tnese concitions were met, and nas therefore failed again to l
protect its interests. Licensee's own orocosed schedule of l hearina issues, adopted in large measure by the Board, resulted i in the secuence of issues at the hearing.
- The Commission's 8/9/79 Order and Notice of, Hearing, pages 9-10 and 14-15, details a process by which Licensee can ensure the earliest possible i
! restart date for TMI-1. Licensee was aware of these provisions when the 8/9/79 Order was ' issued, and if it objected to these provisions, Licensee j could have timely filed a motion for reconsideration to attempt to change l . - - _ - - _ ,
, those provisions. In fact. Licensee engaged in extensive efforts to change these provisions before the Commission adopted them (See Licensee's filings dated 7/20/79, 7/26/79, and 9/14/79, all attached as appendices to this response). Licensee failed, however, to challenge these provisions once the Commission adopted them in the 8/9/79 Order and Notice g Hearino.
Licensee's response to the 8/9/79 Order indicates, in fact, Licensee's acceptance of these provisions, stating that Licensee would appear at the hearing and address the necessity and sufficiency of the actions proposed in the Commission's Order.
The Atomic Safety and Licensing Board has set schedules in several instances in this proceeding which clearly were indicative of the delay which was occurring, yet the Licensee failed to pose objections to these schedules, and failed to move the Board to reconsider them. It is the Licensee itself, however, which is largely responsible for the sequence of issues being considered at the restart hearing. Despite the fact that Licensee was aware of the considerable delay in the proceeding by the time testimony was to be filed, Licensee proposed a schedule of issues which resulted in the issues which could have resulted in an early restart of TMI-1 being placed at the end of the litigation process.
Licensee has no one to blame but itself for this situation. A memorandum from Licensee's counsel, dated 7/18/80, sets forth Licensee's proposed sequence of issues, and also includes an earlier proposed grouping of issues by subject. Licensee's 7/18/80 memorandum (copy attached to this response as Appendix 8 to this response) resulted, for instance, in the management capability and financial qualifications issues, two issues identified as "short-term" by the 8/9/79 Order (issues which would have
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been recaired to be resolved in order to permit rv.: art of TMI-1 before the long-term issues were considered at the hearing), were not scheduled to be litigated until the end of the hearing. Since it was the Licensee who proposed this sequence of issues, and since the Licensee was well aware as a result of the number of issues, the results of discovery, and past experience in ASLB proceedings of the time which would be needed to reach the management and financial issues, it can hardly be claimed now by the Licensee that the Licensee has been somehow wronged by the NRC Staff or the Commission.
Licensee's proposed sequence of issues has resulted in, as of the date of this response, testimony having been heard only from the Intervenor group Three Mile Island Alert on management capability, and not on a single other identified short-term issue. If this sequence of events has placed the Licensee at a disadvantage, Licensee can blame no one but itself since the Licensee proposed this sequence. Licensee is not in a position to request relief from the Commission from the Licensee's own errors. In fact, since filing the motion for reconsideration, Licensee has not moved the Board to alter the sequence of issues (in order to
. protect itself should the Commission deny its motiori). What Licensee is doing, in effect, is saying to the Commission, "Please Commissioners, we have been foolish, but this is costing us a lot of cash, so please rescue us." Licensee has no one to blame but itself for this situation and should suffer the consequences of its own actions in this regard.
Licensee has had the opportunity throughout the restart proceeding to move the Beard' to certify questions to the Commission if the Licensee was confused by the 8/9/79 Order. Other than participating in certifications
on hydrogen gas control and psychological stress, Licensee has filed no such motions with the Board. Licensee has also had the opportunity to request the Board to explain the 8/9/79 Order; Licensee made no such reques ts .
Licensee could have objected or moved the Board to reconsider its orders and rulings on scheduling, but failed to do so. Licensee
. could even, having realized its mistake in its proposed sequence of issues moved the Board to alter the sequence of issues. Licensee did nothing.
Licensee has had the opportunity throughout the proceeding to move the Board to pursue the path suggested by the 8/9/79 Order which would permit, through a partial initial decision, restart of TMI-1 prior to the end of the hearings. Licensee did nothing.
In summary, the Licensee has failed to protect its interests in this matter. Licensee seeks to have the Commission remedy the Licensee's past failings over the last fifteen months by moving the Commission to reconsider and modify its 7/2/79 and 8/9/79 Orders.
Under the circumstances, no such relief is appropriate.
- 3. Licensee's motion is rooted in the economic consecuences l
to the Licensee, its customers, and its investors, from the l 7/2/79 and 8/9/79 Commissten Orders. Such consequences do not result from the Commission's Ceders, but rather from rulings Dy the Pennsylvania Public Utility Commission and the New Jersey Board of Public Utilities on Licensee's rate base, and from Licensee's own actions regardino Dayment of dividends en its stocx. Furtner, sucn issues are not cognizable under the Atomic Enercy Act, and cannot, tnerefore, serve as a basis for the Commission to modify in any way the 7/2/79 and 8/9/79 Orcers.
The Licensee's motion for reconsideration is based solely on the econoiaic consequences of the 7/2/79 and 8/9/79 Orders (as perceived by the Licensee) for its customers and investors. Such issues, by a
. long history of precedent and the language of the Act, are not cognizable before the Commission. The Commission's concern in the matter of TMI-1 restart is and must remain the assurance of public-health and safety. Such concerns cannot be modified by economic consequences of the Orders; public health and safety matters stand on their own merit. Since the financial issues are not cognizable beofre the Commission, the Commission cannot use them as a basis for modifying the 7/2/79 and 8/9/79 Orders.
The actions which are directly to blame for Licensee's precarious financial position stem from the Pennsylvania Public Utility Commission and the New Jersey Board of Public Utilities, and, ironically, from the Licensee itself. The PaPUC and NJBPU have removed TMI-1 and TMI-2 from the rate bases of the three corporate owr er-. of TMI--namely, Metropolitan Edison Company, Pennsylvania Electric Company, and Jersey Central Power and Light Company. The Nuclear Regulatory Commission has no authority in these matters.
The economic consequences to Licensee's stockholders stem directly from Licensee's own actions in eliminating dividends on Licensee's stock.
Again, the NRC was not involved'in this decision by the Licensee, and NRC certainly has no power to determine Licensee's stock dividends.
Even if these financial matters were cognizable before the Commission as a basis for the Commission to modify its Orders (which we believe they are not), the Licensee's motion for reconsideration goes no further than l
r
merely alleging financial consequences. Licensee's motion is devoid of an specification of these financial consequences. There are no dollar amounts given on financial consequences thus far, financial consequences of continued shutdown of TMI-1, or financial benefits of immediate restart. .
There is no information presented which would even allow the Commission to judge whether, even with TMI-1 back on line and providing revenue to the Licensee, the Licensee would remain able to survive financially. It
- is not inconceivable that even with near-term restart of TMI-l that Licensee's financial position is such that bankruptcy may be inevitable. Even if such financial issues were cognizable before the Commission, Licensee's motion for reconsideration lacks the specificity needed by the Commission to make a determination of whether the relief the Licensee requests is merited.
4 Licensee's motion takes issue with the Commission's treatment of TMI-1 versus otner B&W reactors. The 8/9/79 Orcer is ouite specific and clear on :ne reasons for tnis difference--the issues raised by the TMI-2 accident with regards to Tit!-1 and this carticular Licensee are unicue comcared to otner B&W reacters. The discrimination alleged by the Licensee is well-exclained in tne 8/9/79 Order, and Licensee nas ceen aware of this discrimination and the reasons therefore since the Order was issued.
Licensee's own motion for reconsideration at pages 4 and 5 (copy attached to this response as Appendix 9) cites the very language from the 8/9/79 Order which clearly demonstrates why the Commission 4
has treated the Licensee differently from other B&W licensees. The Commission's 8/9/79 Order states in part (emphasis added):
"In addition to the items identified for the ot'her B&W reactors, the uniaue circumstances at TMI recuire that additional safety concerns
- identifiec Dy the NRC Staff be resolved prior to restart." -
It was quite evident when the 8/9/79 Order was issued tnat the Commission had determined, after 4 months of investigations
- on the TMI-2 accident, that there were serious, additional concerns about TMI-1, concerns which went -far beyond those identified generically for all B&W reactors. Licensee was quite aware of these concerns and the Commission's reasoning at the time the 8/9/79 Order was issued. If Licensee disagreed as violently as the motion for reconsideration would have the parties believe, then the Licensee should have promptly filed for reconsideration.
To wait fifteen months, as the licensee did, and then allege
" discriminatory action" shows an extreme lack of diligence on the part of the Licensee i- attempting to protect its interests. There is nothing in the motion which addresses why it took the Licensee fiftenn months to figure out that.it disagreed with the Commission's Order.
l The specific issues raised by the Commission in the context i
of TMI-1 restart included the management capability and financial l
qualifications of the Licensee. In no other case were such issues raised, largely because it is this particular Licensee which experienced the TMI-2 accident, an accident which revealed serious flaws in the management structure of the Licensee and which raised questions about the financial ability of the Licensee to safely operate TMI-1 for the
future.
Largely through Licensee's own suggested sequence of issues, as of the date of this response, testimony has been heard on only one of the mandated, site-specific issues from the Commission Order, and in that case it was the direct case of the intervenor--the NRC Staff and the Licensee have yet to even file their written testimony on the management issue.
Other issues (beyond those mandated by the Order as short-term and long-term issues) were accepted for litigation by the ASLB. These issues were accepted in the First Special Prehearing Conference Order of 12/18/79, and were accepted based on the charge of the Commission to consider the necessity and sufficiency of the items proposed in the Order.
The tests applied by the Board to determine the acceptability of these issues went well beyond traditional tests of litigability. All such issues were required to be related to the question of whether TMI-I could be operated without posing an undue risk to public health and safety, and were ,
further required to have a reasonable nexus to the TMI-2 accident.
Licensee clearly knew about these issues by the date of the Board's First Special Prehearing Conference Order. If Licensee was in such violent disagreement with their inclusion in the hearing, the question nust be asked why the Licensee did not move the Commission ta l
reconsider its Orders, why the Licensee did not move the Board to reconsider its rulings on the contentions, and why the Licensee, in its proposed sequence of issues for the hearing, proposed to litigate these issues ahead of Commission-mandated issues. There are no answers to these questicns provided by the Licensee--it is clear that Licensee did l
! nothing for fifteen months, thus failing to protect its interests.
i L
25-
- 5. Licensee's ration asserts that there are " National and regional interests" teine sacrificed by tre TMI-1 restart croceecinc.
No succortive arcur.ent or factual materiais are found in Licensee's motion to cac( 00 nis argument. It is witncut rerit anc is meaningless to tne Commissien's determination regardine Inis motion for recensideration.
J 0 Licensee's motion depends, in~ part, upon Licensee's assertions that there are certain, unspecified " National and regional interests" being sacrificed by the delay in the restart proceeding. Such assertions were made by the Licensee in its 7/20/79 and 7/26/79 filings nearly seventeen months ago; there is nothing new about such assertions.
Licensee's motion fails utterly to go beyond mere assertion in
- this regard. Licensee has not cited a single law, resolutien, Execu'ive Order, er Cc mission statement of position which supports its claim. Licensee's unsupported assertions were known to the Commission weeks before the 8/9/79 Order was issued, and the Cc=missicn's knowledge
'of these assertiens had_ no perceivable impact en the Order. Having repeated these assertions seventeen months later, with no core (in fact.
- even less) specificity now than in July of 1979. Licensee expects the Commission to modify its Orders. This sicply is unreasonable, and provides no basis for Commission action.
If Licensee is referring to its earlier alledged oil import savings if TMI-1 were on line, Licensee should have addressed in some detail precisely where the replacement power for Till-1 is coming from.
In fact, a significant portien of that replacement power is coming
' from coal-fired power plants, frca hydroelectric sources, and frc=
other nuclear plants. The parties joining in this response are not g , -y- 9, ,amy--t-'-ms--- F M T- - --- 4 *"*9 T 9 eri t+ y am-M 'm+m -
1 l
l privy to the exact figures, but are certain that, should the Commission for some unexplained reason require these figures, the PaPUC could provide most of this information as could the Consumer Advocate's Office (Pennsylvania Department of Justice). -
Licensee's unsupported assertions of national and regional intere'sts must be balanced against the very specific and very real interests in the public health and safety, the interest which must be paramount in the Commission's deliberations. The Commission took extraordinary action in suspending TMI-l's operating license on 7/2/79 because it lacked the requisite reasonable assurance that the plant could be operated without endangering the public health and safety.
Absent some equally extraordinary determination by the Commission that this is no longer the case (and this decision has been assigned to the ASLB hearings for deliberation), the protection of the public health and safety must remain the paramount concern of the Commission.
Licensee has identified no national or regional interests of any type which are as important as the health and safety the two million people living within 50 miles of Three Mile Island. Licensee's unsupported assertions are without merit.
- 6. Licensee's assertions in its motion for reconsideration that the delays in the oroceedino nave resulted from delaying tactics by the intervenors, from "overceneralized" wordinc of the 8/9/79 Order, and from ;4RC Staff actions, are gratuitious and at best disingenuous. The Licensee nas contributed significantly to tne delays in this croceeding. and must therefore shoulder a sianificant cart of the burden of the delay. This persoective greatly weakens Licensee's argument that it is antitled to Commission relief from these delays.
- w -, - - ,
Licensee strongly implies in its motion that the intervenors in this proceeding have sought to use the adjudicatory process to delay the restart of TMI-1. Licensee provides no support for this assertion, and, in fact, the record shows many instances where the large number of intervenors in this proceeding have voluntarily cooperated with the ASLB and the Licensee to reduce the opportunity for delays in the proceeding. Such
- instances include voluntary consolidation on the basis of issues (without intervention by the Board), dropping of duplicative contentions, simplifying of issues following discovery, and voluntary attendance at many meetings outside the hearing process to resolve disputes which have arisen. The intervenors have also been amenable to curtailed schedules for submittals and discovery on matters such as the SER (NUREG-0680). Licensee's blame of the intervenors for delaying the proceeding is mere rhetoric, unsupported by any documentation, and contradicted by the facts.
Licensee lays most of the blame for the delays on the Commission and the Staff. If Licensee was confused by the 8/9/79 Order, or disagreed with the language of the Order as being " overgeneralized", Licensee had a number of remedies--motions for reconsideration, certified questions of clarification, and other motions to the Board. Licenses took advantage of none of these remedies. Licensee complains that it did not know what standards would be applied to it in determining the acceptability of Licensee's responses to the order items. Licensee had the same discovery opportunities as other parties, yet failed to pose a single interrogatory to the Staff on this matter. Licensee's complaints about the Order language, coming at this late date following fifteen months of inaction by the Licensee, amounts to " sour grapes." Licensee is in no position to complain.
Regarding the Staff's role in delays, the parties joining in this response agree to some extent that the Staff's prioritization of this proceeding appears to have slipped since the beginning of the proceeding.
The parties feel that there are numerous causes for this, however, among them being the multitude of investigations following the TMI-2 accident, and the necessary reviews of TMI-2 cleanup-related processes. The parties are also in agreement, however, that much of the delay the Licensee would lay upon the Staff (in terms of issuing the SER and providing testimony) are in fact due to the Licensee's delays in providing the Staff with materials which the Staff requested, and to the habit of the Licensee to repeatedly and significantly revise such information months after it is submitted. Examplary of such delay on the part of the Licensee in timely filing of information requested by the Staff is a letter from Mr. Robert Reid to the Licensee, dated 9/4/80 (copy attached to this response as Appendix 10). The letter states, in part (emphasis added):
"In NUREG-0680 ussued in June 1980, we identified open items in our review of your compliance with l the NRC Order of August 9,1979. This review l covered your Restart Report through Amendment No.18, and letters and other documentation l through late May 1980. Since that time we
! have received Amendments Nos. 19 and 20 to I
the Restart Report, dealing wi-th the revised I Emergency Plan and management capability, as well as your current financial plan and some plant procedures. These items are in review."
"However, we have received no amendments or other l
information on the bulk of ocen items in the SER since issuance of NUREG-0680. Your letter of May 28,1980 (TE 254) identified scheduled l intermediate and completion dates for many l open items, at least half of which have already i
passed. VerEal informatioffrom your staf f 1
l
- in July indicated sionificant submittals were to, have been made bv Aucust 1, and after this date had passed, this was estimated to be accomolished bv the end of, Aucust. Present estimates, we understand, are now mid-September."
It is the view of the parties joining in this response that a careful review of information in Dockets 50-289 and 50-320 will demonstrate
. that such delays in submitting requerted informaticn are characteristic ~
of this Licensee, and will further demonstrate that such delays have had a significant impact on the ability of the Staff to meet its deadlines for filing reports and testimony.
Licensee has contributed to delay in other ways. For example, Licensea has had three substantively different site emergency plans before the parties in this proceeding. The Commonwealth of Pennsylvania and the counties of Dauphin, Cumberland, York, Lancaster, and Lebanon (upon whom the Licensee relies for emergency planning) have also had two distinctly different sets of emergency plans before the parties.
Such continuing revisions inevitably causes delay. Licensee has revised its management structure at least .three different times, and has submitted numerous sets of financial information, each substantively different from the previous submittal . All such revisions inevatably take time from the Staff, the Board, and the intervenors and introduce delays into the -
proceeding.
Licensee's continuing habit of revising its so-called " Restart Report" has also caused delay. The parties have been submitted 22 sets of revisions, the most recent having been served upon the parties on 10/17/80, two days after the hearings began. Revision 22 included
substantive revisions of, among others:
- a. Emergency power supply requirements and design basis for Pressurizer heaters, PORV, PORV-block valve, and Pressurizer Level Indication.
- b. Instrumentation to detect inadequate core cooling (saturation meter design),
- c. Auxiliary feedwater power supply modifications.
- d. A major review of in-plant shielding.
- e. Revisions to management structure.
- f. Major submittals cn small-break operating procedures and auxiliary feedwater accident analyses.
Such revisions cannot help but cause delays in the proceeding, particularly for the Staff.
Licensee's attempts to place responsibility for delaying the proceeding on all parties but itself is clearly self-serving and misleading. Licensee must be held responsible for such delays as well, particularly considering that the Licensee is the only source, in many cases, of the information required by the Staff for its review purposes. When the delays for the proceeding are placed into this 'p erspective, with the Licensee clearly being responsible for much of the delay, this greatly weakens the Licensee's case that it is entitled to some type of relief from the Commission. This is especially true when the Licensee has had identical opportunities for filing the same motion for reconsideration (with the same arguments and facts) for the last fifteen months.
-4. , - . - _ , c .
4
- 7. There are due orocess considerations which Licensee's motion totally falls to address recarding the timing and substance of the motion for reconsideration. The intervenors (and cossibly other parties, such as Commonwealth reoresentatives) would be substantially Drejudiced oy the granting of Licensee's motion due to the investments in tne adjudicatory Draceeding of time, money, and legal and technical expertise. Granting Licensee's notion would greatly Drejudice intervenors' efforts to obte,1;n relief by other means. Licensee has substantially contrib ted to this prejudice by its filing of the motion fifteen months late.
The intervenors entered into the restart proceeding in good faith, under the belief that the Commission was properly exercising its statutory authority in ordering this proceeding to be held prior to restart. Other remedies could have been pursued (such as a "show cause" order, for instance), but were not pursued due to the existence of the hearing process set in motion by the 8/9/79 Order and Notice of Hearing.
The intervenors have invested a substantial amount of effort in this proceeding. Many thousands of dollars have been spent on attorneys, researchers, and expert assistance in preparing for ,
these hearings. Untold thousands of hours of personal time and other in-kind efforts have been donated by hundreds of individuals.
By committing their legal, technical, financial, and' personal efforts to the adjudicatory proceeding on TMI-1 restart, the intervenors have forgone other remedies which were available to the intervenors. The 8/9/79 Order significantly affected the choice of remedies for the intervenors. For the Commission to now grant this extremely lato-filed motion would be very prejudicial to the intervenors and manifestly un fai r. Furthermore, it would be prejudicial to other. members of the
k public who, save for the participation of the intervenors in this adjudicatory proceeding, would also have sought re?ief from the situation by seeking alternative remedies.
By its late-filing of its motion for reconsideration, Licensee shall have substantially contributed to this prejudice if its motion is granted.
Given the lack of authority for such a filing, and the utter failure of
- the Licensee to protect its interests until this late date in the proceeding, for the Commission to grant the Licensee's motion would be manifestly unfair and would constitute a very obvious and bold abuse of discretion. Licensee's motion should be denied.
- 8. TMI-1 is not ready to be restarted now, and will not be orecared for restart for some time. Mocifications to tne clant must ce completed and tne entire facility and :taff must ce inscacted by the NRC Staff orior to restart. The coerators of tne reactor must all be reoualified and relicensed. By tne time all of tnese things can be accomplished, the adjudicatory proceedings will be nearly or totally completed.
It is clear that TMI-1 is not prepared for operation at this juncture.
Consultation with the NRC Staff will readily confirm this fact. Many changes in both hardware and procedures remain to be accomplished. In addition, the NRC Staff must complete its inspection of the facility. Only a " rush job" could result in restart significantly before the end of the adjudicatory hearings .
Such a " rush job" is not desirable from either the NRC Staff or the Licensee's personnel. The risks inherent .in such an approach are very high, and unreasonably risk the public health and safety. Even if the Commission were to grant Licensee's motion, which the parties joining
--e
---a .- y qw ~ w q- m -g-- -T-- - -ge--
.p e -- m ,
in this response believe that the Commission lacks the authority to do, there is little practical relief that this would grant to the Licensee.
The only possible benefit would be the placement of TMI-1 back into the rate base of the Licensee, and even this possible benefit is contingent upon action by the PaPUC and the NJBPU. Furthermore, such potential benefit is not cognizable before the Commission as a basis for granting relief which the Licensee has requested.
There would be precious little merit in permitting restart of TMI-1 only a few weeks shy of the completion of the proceedings, as would granting the Licensee's motion so result. In essence, even if the Commission could grant the motion, there would be little practical benefit to the Licensee in doing so. Such questionnable benefit must be weighed against the overriding interest by the NRC in protecting the public health and safety.
Again, the parties joining in this response respectfully suggest that the benefits which micht accrue to the Licensee are far outweighed by the consideration of public health and safety.
- 9. Licensee's oosition regarding the Staff in its motion is internally inconsistent, and poses a caradox in terms of the Staff's role in the restart of TMI-1. It is also paradoxical that the Licensee is prepared to accept the safety findings of the very agency wnicn it has sued for S4 billion, alleging incomoetance in regulating j nuclear power plants.
l The parties joining in this response note here, for the record, a paradox posed by Licensee's motion. Licensee harshly criticizes the t Staff, and then proposes to have this same Staff act in the role of final arbiter in determining whether or not the bases for suspension 3 of the operating license have been satisfactorily resolved, and whether the Licensee has satisfactorily completed all required modifications
to the facility and to plant procedures. This is illogical.
Further, Licensee has recently filed suit against the Commission alleging $4 billion in damages. This suit alleges negligent performance by the NRC of its operational functions. It is paradoxical that the Licensee sues the NRC on one hand, and requests that same agency to expedite a safety review of its nuclear facility.
- 10. Desoite continued attention to the management cacability issue whicn Licensee c'Tims to be makino, there nave oeen anc continue to be occurrences wnich raise serious cuestions about tne acility of the Licensee to safely coerate TMI-1. Even tne NRC Staff concluded recentiv in its Sucolement to NUREG-0680, issue '
in November 1980. that the Licensee is still not in comoliance with Order Item 6. Until tne manacement cacability 1ssue is resolved, the Com. mission cannot make the finding recuired to permit TMI-1 to restart.
Licensee claims to have solved its management problems. Contrary to this position, the parties joining in this response note a continuing series of management-related problems which raise serious questions atout the ability of the Licensee to safely operate TMI-1, especially when consideration is given to the fact.that this same Licensee is attempting to decomtaminate TMI-2. Such a task, involving a cleanup of unprecedented proportions, must be attracting the attention of Licensee's most qualified personnel and management. This cannot help but detract from the operation of TMI-1.
The most recent -instances of questions about raanagement being raised arise from a recent special health physics inspection and a letter to the Licensee regarding the Licensee's operator training program. Both of these areas were highlighted by the TMI-2 accident as being deficient.
. __ _ -_ -- _ _ - . . - _ . _ - . - - . - _ . ,- _ _ _ _ _ ~_ .
In a letter dated 12/1/80, Mr. Paul F. Collins of NRC submitted comments to the Licensee on its Revised Licensed Operator Qualification and Requalification Training Frogram (the letter and comments are attached to this response as Appendix 11). The letter noted that the Staff found Licensee's training program for licensed personnel to be " unacceptable." Among the reasons listed were that the program relies on open book quizzc: for periodic evaluation of
~
an operators knowledge of the subject matter of the training program, and provision that licensed personnel not directly related to unit operations had to participate actively in control room operation only one shift every three months. Certainly this is not the picture of a Licensee which has " learned its lesson" and " cleaned up its act."
The health physics problem noted relates to a special inspection of the Licensee's health physics program conducted during the period of 28 July to 8 August 1980. Inspection and Enforcement Report 50-289/80-22 (copy attached as Appendix 12, including cover letter, notice of violations, l
and cover sheet of Inspection Report itself) reveals numerous violations, I
l including failure to implement a satisfactory extremity TLD monitoring program, and a variety of procedural violations. It is worth noting that this inspection and list of violations comes within a year of a Special l
Panel report on TMI.-2's health physics program. That report found that.
the Licensee's Unit 2 health physics staff was unprepared for the major recovery actions which would be necessary following the TMI-2 accident.
The parties joining in this response would have expected that the Report of the Special Panel would have prompted the Licensee to greatly improve its health physics programs at both TMI-1 and TMI-2. Apparently, this did not happen, and additional violations were uncovered in the recent special
inspection of Licensee's THI-1 health physics program.
It is also worth noting the protracted periods of time required by the Licensee to resolve violations arising from the NUREG-0600 investigation.
The recent NUREG-0680 Supplemt.'1t notes that some items were not successfully resolved until as late as Novembec 1980 (See NUREG-0680 Supplement No.1 Appendix A, page 7). The Notice of Violation arising from the NUREG-0600 investigation was dated 10/25/79.
Taken together with ot;her instances too numerous to detail in this response, these management-related problems indicate that there remain
- ubstantial problems and that Licensee'~ smanagement capability must remain suspect until proven otherwise. Licensee's motion for reconsideration provides no information upon which the Commission or the NRC Staff could make a finding that Licensee's management is now adequate. Inasmuch as management capability is one of the Order-mandated issues identified as part of the basis for the suspension of the TMI-1 operating license, Licensee's motion cannot be granted. The management issue is central to the restart proceeding, and the l restart prpceeding represents the most expeditious and most thorough forum i
for resolving this issue.
- 11. Licensee's arguments regardino the legal acceotability of restart while the restart proceeding continues to consider short-term items identified as cart of tne basis for suscension of the TMI-1 operating license are flawed. Since the TMI-l license has teen l s coended, the bases for tnat suscension must, under tne lag, be l t solved prior to restart. Tne Commission must be able to make a
! finding tnat coeration of IMI-l will not encanger the cuolic nealth and safety, before THI-l restart can be autnorized. The Ccmmission has oetermined, witn1n tne scoce of its autnority under the Atomic Energy Act and the Administrative Procedure Act, to hold an adjudicatory hearing orior to restart. That nearino is tne means by wnicn tne bases for suspension of THI-l's coerating license are to ce resoived, and that nearing must tantinue until tnese cases are resolved.
l l
,, . . _ , . _ m ... .,_. -
.m -- ,, . , _ . . - ., .- - _ ,
Licensee's motion for reconsideration argues explicitly that there is no legal requirement that the Commission hold a formal adjudicatory hearing prior to restart of TMI-1. Licensee cites a memorandum from the Commission's General Counsel, dated 7/26/79 (copy attached as Appendix 13), as authority for its position.
The parties note here that the record of the meetings of the
. Commission covering the period 7/2/79 through 8/9/79, taking note of the restrictions imposed by the disclaimer resulting from the rules at 10 C.F.R. 5 9.103, are not entirely clear what arguments the Commission eventually accepted a c'.r.crolling in this matter. For i
instance, the Executive Legal Director addressed this matter in two separate memoranda to the Commissiun, dated 7/9/79 and 7/25/79. The ELD r.oted in the 7/9/79 memo-(emphasis added):
"1his memorandum explores the alternatives available to the Commission and presents our recommendations in the three areas. It assumes that an adjudicatory-type hearing will be held and that the Commission itself intends to complete its review of the issues relating directly to the restart of the facility
! prior to lifting the suspension of operation. We --'
further consider the hearino as, one ' required by statute' to whicn the adjudicatory orovisions of the Administrative Pr cedure Act acoly; i .e. ,
we treat the nearing cont.mplated by tne Commission's Order as the hearing which would be required by 1189a of the Atomic Energy Act if any person whose interest may be affected by this suspension proceeding should request a hearing." (See Shapar memorandum, dated 7/9/79, at pages 1 and 2)
This memorandum appears to be in conflict with the quoted
~
language from the General Counsel's memoradum dated 7/26/79, wherein2 the General Counsel stated, as mentioned in the Licensee's motion:
4 "No statutory requireme,ts are applicable to any such heartng." (See Bickwit memorandum, page 2)
The General Counsel appears to disagree with the Executive Legal Director on whether the restart hearing is required prior to restart.
Regardless of who is correct on this point, however, both Mr. Bickwit
. and Mr. Shapar agree that it is within the Commission's authority to determine that the hearing will occur prior to restart, and Mr. Shapar points out the even the Licensee concedes that this is so (See Shapar memorandum, dated 7/25/79, pages 1 and 2 of the Staff reply attached to this memoradum). This, in fact, is what has occurred; i .e., the Commission has determined that a full adjudicatory proceeding will precede restart of TMI-1. Neither the General Counsel nor the Executive Legal Director (or the Licensee for that matter) address what happens a fter the Commission exercises its discretion and orders the hearing prior to making a decision on restart.
As Mr. Shapar's 7/9/79 memorandum noted:
"The suspension of operation ordered by the Commission prior to hearing (or opportunity ror hearing) invokes an extraordinary remedy. . . It is justified only so long as the bases supporting the action exist. The Commission has elected to determine through adjudicatory proceedings whether those bases are satisfactorily resolved. When and if, however, completed adjudication reveals that the bases are favorably resolved, the suspension must be lifted to ' restore th e status auo prior to the extraordinary action." (See Shapar memorandum, 7/9/79, pa;es 7 and 8)
In fact, the Commission's 8/9/79 Order takes this batter into
account in providing, as previously described, a ceans by which TMI-1 could restart prior to the end of the hearings if the Board issues a partial Initial Decision concerning the suspension-related issues (i.e., the "short-term actions"). -
Since the Commission has determined that the adjudicatory hearing
~
is necessary to its deliberations on this matter, it is inappropriate for the Licensee, at this late date, to request the Commission to change its course in mid-stream. As we have stated, this would be extremely prejudicial to the intervenors' interests.
Once started into the adjudicatory process, we question whether the Commission has the authority to change the nature of the hearing i n mid-stream. Licensee's motion cites no authority for so doing, rather it deals only with whether the hearing was required. Having been
- started within the scope of the Commission's discretion, Licensee fails to address whether -he Commission can alter the process.
Given this extraordinary situation, the parties joining in this response were not surprised to find that there is precious little in the j way of precedents dealing with this situation or anything remotely like it. We can only suggest, however, that after beginning this process l
l (which apparently all parties are agree was within the Commission's i
authority to do so), the Commission is bound by due process and fairness to complete it. Licensee has failed to taka advantage of the previsions of the 8/9/79 Order which could conceivably have resulted in restart
, of TMI-I by now or in the near future. Having utterly failed to protect its interests, Licensee now seeks the Commission's rescue from Licensee's own self-inflicted position. The Commission owes the Licensee nothing in
in this regard.
The Commission has set forth the restart hearings as the means by which the bases for the suspension of the TMI-1 operating license are to be resolved. Licensee presents no convincing arguments that at this late date, after having totally failed to take advantage of the provisions of the 8/9/79 Order, and after neglecting to file an appropriate motion fur reconsideration for fifteen months, the Commission should grant it some relief. Under the circumstances set forth in this response, no such relief is merited. The Licensee's motion should be denied without further ado.
A PPENDICES :
- 1. Letter from George F. Trowbridge, counsel for the Licensee, to Chairman Joseph Hendrie, NRC, dated 7/2/79, 3 pages.
- 2. Letter from W. G. Kuhns, Chairman of GPU Service Corporation, to Chairman Joseph Hendrie, NRC, dated 7/11/79, 2 pages.
- 3. Filing entitled, " Licensees' Answer to Commission Order Dated July 2,1979, docketed 7/20/79, signed by George F.
Trowbridge, counsel for Licensee,15 pages with Appendix A, 5 pages.
- 4. Memoradum from Howard K. Shapar, ELD, through Lee V. Gossick, EDO, to the Commissioners, dated 7/9/79, subject: Discussion of Proposed Provisions Relating to Hearing to be Contained in Commission's Further Order in the Three Mile Island Unit 1 Suspension Proceeding, 9 pages.
- 5. Memorandum from Howard K. Shapar, ELD, through Lee V. Gossick, EDO, to the Commissioners, dated 7/25/79, subject: Proceedings on Start-Up of Three Mile Island Unit 1, 2 pages, with accompanying "NRC Staff Reply to Licensees' Answer to Commission Order Dated July 2, 1979," 7 pages.
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, - - - - , - . - c -- , - ,v-
- 6. Filing entitled, " Licensees' Response to NRC Staff Memo and Reply of July 25, 1979," docketed 7/27/79, dated 7/26/79, signed by George F. Trowbridge, counsel for Licensee, 7 pages.
- 7. Filing entitled, " Licensee's Answer to Commission Order and Notice of Hearing Dated August 9,1979," dated 9/14/79, signed by George F. Trowbridge, counsel for Licensee, 5 pages.
- 8. Memorandum from George F. Trowbridge, counsel for Licensee, to parties in TMI-1 Restart Proceeding, dated 7/18/80, with Attachment A. " Sequence of Subject Matter Groups,"
ano Moy of " Grouping of Staff Recommendations and Interverer Contentions (dated 4/14/80)," 9 pages total.
- 9. Letter from Herman Dieckamp, President of GPU, to Chairman John F. Ahearne, NRC, dated 12/1/80, 11 pages (with first page as revised on 12/5/80).
- 10. Letter from Robert W. Reid, Chief, Operating Reactors Branch
- 4, Division of Licensing NRC, to R. C. Arnold, Senior Vice President, Metropolitan Edison Company, dated 9/4/80, 1 page.
- 11. Letter from Paul F. Collins, Chief, Operator Licensing Branch, Division of Human Factors Safety, NRC, to Henry D. Hukill, Vice President and Director, Metropolitan Edison Company, dated 12/1/80, with " Comments on Three Mile Island Operator Requalificaticn Program (Unit 1 Administrative Procedure 1006)", 3 pages total.
- 12. Letter from Boyce H. Grier, Director, Region I Office of Inspection and Enforcement, NRC, to R. C. Arnold, Senior i
Vice President, Metropolitan Edison Company, dated 11/26/80, with accompanying Appendix A, " Notice of Violation", and cover sheet for I&E Report 50-289/80-22, 9 pages total.
- 13. Memorandum from Leonard Bickwit, Jr., General Counsel, to the Commissioners, dated 7/26/79, subject: TMI-1 Proceeding,10 pages.
O
UNITED STATES OF AMERICA NUCLEAR REGULATORY CC" MISSION BEFORE THE NUCLEAR REGULATORY COMMISSION
) .
In the Matter of yl METROPOLITAN EDISON COMPANY, ET AL. 3 Docket No. 50-289
) (RESTART)
(Three Mile Island Nuclear Station, Unit No.1) /)
)
CERTIFICATE OF SERVICE I hereby certify, by my signature which appears below, that I served upon those persons on this service list single cepies of -he cocument captioned: " JOINT RESPONSE IN OP:CSITION TO LICENSEE'S FOTION FOR RECONSIDERAT!CN OF THE COMMISSION'S ORCERS OF 2 JULY 1979 and 9 AUG"ST 1979",
dated 18 December 1950, by deposit in the United States miil, first class postage prepaid, this 18 th day of December 1980, or by hand delivery as noted by (*) on the same date.
1
'7 m
/1 /4 DATED: 18 Cecember 1980 f
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' sy/ ' 'lb Steven C. Sholly, Interven.)r pro se, y Mr. John F. Ahearne Mr. Leonard Bickwit, Esq.
Chai rman General Counsel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissien Washington, D.C. 20555 Washington, D.C. 20555 Mr. Peter Bradford Mr. Stephen Eilcerin, Esq.
Commissioner Office of the General Counsel U.S. Nuclear Regulatory Cc= mission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Mr. Victor Gilinsky tir. George F. Trowbridge, Esq.
Commissioner Counsel for Metropolitan Edison Com:any U.S. Nuclear Regulatory Commission Shaw, Pittman , Pott:, & Trowericge Washington, D.C. 2C555 1800 l1 Street, M.W.
Washington, D.C. 20035 Mr. Joseph Hendrie Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ,
CERTIFICATE OF SERVICE 12 December 1980 Mr. James Tourtellotte, Esq. Mr. Walter W. Cohen, Esq.
Office of the Executive Legal Director Consumer Advocate U.S. Nuclear Regulatory Commission Office of the Consumer Advocate Washington, D.C. 20555 1425 Strawberry Square Harrisburg, PA 17127 Mr. Herman Dieckamp .
President Ms. Karin W. Carter, Esq.
General Public Utilities Corporation Assistant Attorney General 100 Interpace Parkway ~505 Executive House Parsippany, N.J. 07054 P.O. Box 2357 Harrisburg, PA 17120
. Hon. Richard Thornburgh Governor of the Commonwealth of Mr. Robert W. Adler, Esq.
Pennsylvania Assistant Attorney General Room 225 Main Capitol Building Commonwealth of Pennsylvania Harrisburg, PA 17120 505 Executive House P.O. Box 2357 Mr. Ivan W. Smith, Esq. Harrisburg, PA 17120 Chairman, Atomic Safety and Licensing Board Panel Mr. John E. Minnich U.S. Nuclear Regulatory Ccmmission Chairman, Dauphin County Board Washington, D.C. 20555 of Commissioners Dauphin County Courthouse Dr. Linda W. Little Front and Market Streets Atomic Safety and Licensing Board Harrisburg, PA 17101 Panel 5000 Hermitage Drive Mr. Samuel Chilk Raleigh, NC 27612 Secretary of the Commission Office of the Secretary Dr. Walter H. Jordan U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, D.C. 20555 Panel ATTN: Docketing and Service Section 881 West Guter Drive Oak Ridge, TN 37830 Mrs. Marjorie M. Aamodt Intervenor pro se--'
Mr. Thomas J. Germine. Esq. R.D. #5 Deputy Attorney General Coatesville, PA 19320 State of New Jersey Division of Law--Room 315 Mr. Jordan D. Cunninghan, Esa.
1100 Raymond Boulevard Counsel for Newberry Township Newark, NJ 07102 Three Mile Island Steering Committee Fox, Farr & Cunningham Mr. John A. Levin, Esq. 2320 North Second Street Assistant Counsel Harrisburg, PA 17110 Pennsylvania Public Utility Commission P.O. Box 3265 Ms. Ellyn R. Weiss, Esq.
Harrisburg, PA 17120 Counsel for Union of Concerned
- Scientists Harmon and Weiss 1725 I Street, N.W., Suite 506 Washington, D.C. 200C6
CERTIFICATE OF SERVICE 12 December 1980 Ms. Gail Bradford Mr. Daniel P. Sheehan, Esq.
Legal Representative Christic Institute Anti-Nuclear Group Representing 1324 North Capitol Street
' York (ANGRY) Washington, D.C. 20002 245 West Philadelphia Street York, PA 17404 Ms. Frieda Berryhill Chairman, Coalition for Nuclear Mr. William S. Jordan, III, Esq. Power Plant Postponement Counsel for People Against Nuclear 2610 Grendon Drive Energy (PANE) Wilmington, DE 19908 Harmon and Weiss 1725 I Street, N.W., Suite 506 Ms. Jane Lee Washington, D.C. 20006 R.D. #3 Box 3521 Mr. Robert Q. Pollard Etters, PA 17319 Representative for Chesapeake Energy Alliance (CEA) General Counsel 609 Montpelier Street Federal Emergency Management Agency Baltimore, MD 21218 ATTN: Docket Clerk 1725 I Street, N.U.
Dr. Judith H. Johnsrud Washington, D.C. 20172 Legal Representative Environmental Coalition on Nuclear Mr. Donald Konkle Power (ECNP) President 433 Orlando Avenue Three Mile Island Legal Fund State College, PA 16801 ___ Board of Directors 1037 Maclay Street Mr. Marvin I. Lewis Harrisburg, PA 17103 Intervenor cro se 6504 Bradford feFrace Ms. Beverly M. Mess Philadelphia, PA 19149 President Three tiile Island Public Interest -
Mr. Theodore A. Adler, Esq. Resource Center Board of Directors Counsel for Three Mile Island 103711aclay Street Alert. Inc. (TMIA) Harrisburg, PA 17103 Widoff Reager Selkowitz & Adler P.O. Box 1547 Harrisburg, PA 17105 Ms. Judith A. Dorsey, Esq.
Counsel for Susquehanna Valley Alliance (SVA)
Public Interest Law Center of Philadelphia (PILCOP) 1315 Walnut Street, Suite 1500 Philadelphia, PA 19107 Ms. Jean Kohr, Esq.
Counsel for Susquehanna Valley Alliance (SVA)
Minney, Mecum & rohr 150 East Chestnut Street Lancaster, PA 17602
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.. ,=e= e .=: s.o.w=4 e=.=w ewe =.=e =.c==.e s . e-e sv July 2, 1979 The Hencrable Joseph Hendrie Chair =.an U.S.1:cclear Regulatern Cer=~ission .
Washington, D.C. 20555 .
Dear !!r. Chair =an:
Cn ?=riday evening, June 29, 1979, C:==issioner Cilinsky announced in Middletown, Pa. , that the ".0:;;tissi:n had decided :o
- ='" -l. ::!hile G"'O has . ad issue a for- al order with resca no official notics m.mbsToc's setf2in, i: is cur u.. der-standing based en C =issioner Gilinsky's announc2=ent tha: the crder will require ""C-1 to ra=ain shut dcun until further Order of the Cc==ission and that an opper:unitf for pu lic hearing will be provided prior to final Cc==ission actica.
The purpose of this le::er is to request that GPC have an opportunity to review and ce=ent on any pr: posed crder with respect to the secpe and conduct of the hearing and the 00=is-sion's decisional process. The C =ission's dets: .ina icns =n these ma ters can =ake a difference of many conths in the length of he pr::seding.
We wculd be prepared to meet with the C :*.iscien's staff or in the alternative to furnish:4eanwhile, cur cc=ents within 43 hours4.976852e-4 days <br />0.0119 hours <br />7.109788e-5 weeks <br />1.63615e-5 months <br /> of we have the f=110 wing receipt of a proposed c der.
suggestions:
- 1. The secpe of the hearing should be li=ited te issues which arise cut of the T:!-2 sccident N
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SH AW, PIT *M AN, ACT*S & TROWS RIOGI The Hencrable Joseph Hendrie
. July 2, 1979 Page Two and to whether the =easures :.:::.csed hv. Me : -
politan Idiscn C:=_pany _..
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ac ==plished e..4 c ... .w.e s.1 . . . . . ..
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ad grate shcr:-ter= respense to .ha- acciden:
and a basis for restart of "-C-1. '"h eHertein s e =e a-
- sures are listed in a letter fr = .w.r.
to .".r. Centen, dated June : , 1979 (ce.v. a:-
tached).
- 2. 5.4 ._., e ....e w C 4ss.4,n 3 as a..c.4.a.e a .u. . .. .. u. _ .,
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and crder of the C :=issica itself, .he ner=a*.
process of hearing and decision by an A:t ic .
Safety and Licensin: 3 card fellowed by av.ea*.s to the Appeal Scard and then to the 0 : =13-sien shculd nc- he ' 11cwed. Cne alternative would be - adopt instead the precedure *:1- .
Icwed in the Appendix ! and 2003 rule =aking
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before a specially appointed hearing heard which would then certify the racerd := the C 'ssica for decision.
- 3. The hearing beard shculd be ins ructed, as per=itted by presen: regula:icns, : censoli-date to the .t
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- 4. The crder shculd =ake clear tha: r. endine. he cut c=e of the hearing Me -epelitan Idisen Cc=r anv. =av : Oceed ec =ake =edificati:ns in the CC-1 plant and plant precedures in a:-
cordance with existing C:==issien repulat;.cns,
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cf the to participate in a public hearing and with the interes:
cust =ers of Me.r:politan Idisen 00=pany in the earlies: pracci-cable decision en the restart of O C-1.
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t 3 H AW. PITTMAN. PCTTS & IRCWS AICGC The Ecncrable Joseph Hendrie July 2, 1979 Page Three Mr. Herman Diecka=p and I plan te he present at the Cemission's =eeting today and we would be pleased te answer any ques.icns with respect to this request.
Sincerely,
', /
- J accr,e ?. Trewbridge Counsel for GPU Encles re cc w/ enclosure:
Cemissioner victor Gilinsky Ccenissioner Richard Kennedy Ccemissioner Peter 3radferd Cc=missioner John M.earne Samuel J. Chi'.k, Secretary Leonard 31ckvit, General Ccunsel e
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Parsccany New gersey C7054 201 253 4 00 T a ?.x 136-e.2 he July 11, 1979 Hon. Joseph Hendrie, Chai:=an United S tates Nuclea: ?.egulatory C0==ission ,
Washington, D. C, 20555
Dear Mr. Chair =an:
It is =y understanding tha: the Co==issica in-tends to consider at its meeting temer:cw pr,ccedures for the further proceedings relating sc restart of Th:ee F.ile .
Island Uni: No. 1, as contempla:ed cy the C:: issien's Order, dated July 2,1379, which will largely govern the schedule on whica such pecceedings can be ce=pleted. *4e urge that, in establishing these p:ccedures, censide:2:ica
. be given to the economic interest of the more than 4 .illion residents of Pennsylvania and New Jersey served by the GPU companies in permitting restart of TMI-1 as soon as that is consisten with the Oc :ission's cbtaining reascnacle -
assurance sna: TMI-1 can be operate'd witncut endange:ing the health and safety of the public.
We are fully in accord with the view : hat the
. governing criteria for resumption. of TMI-l opera _iens =us:
be these of public health and safety. The p:cpocals we suo=itted to :he Cc==ission on July 2 for changes in equipment, ::aining and cperating p ccedures were based en those criter ia. These modifica:icns could be comple:ed by about September 1,1979. We submit that it would be a disservice to all concerned if the p:ocedures established for the furtner proceedings resulted in a long delay af ter that date oefore the Uni: could.be restored to service.
The insact of the TMI-2 accident and of the snut-down. of TMI' 1 en cur ' ability to serve 'cc: cus:crers -and on :he co_s: of such service were the subject of extensive
~
proceedings before the Pennsylvania Public Utility Commission g .
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Page 2
. - July 11,)979 .
- ~ *
("PaPUC") and the New Jersey Board of Public Utilities
("NJBPU"). In recognition of the i=portance of these matters, both. the ?aPUC and NJ3PU held extensive and expedited hea:ings, sitting en banc, with full puslic participation.
Both. agencies es:aclished and =aintained rige:cus schedules for cc pletion of the hearings and for decision. All procedural and substantive due p:ocess rights were dully observed, but the ad=inistrative peccedure was not pe::itted to defeat the objective of a timely dete:sinatien. In :oth States, the rate actions taken y the CO =issions were predier -* upon the expectatica ::a restart of T*.!-1 by Je an.* ;, .,1980 would be authori:ed.
While economic consequences cannet and shou'ld not shape the nature of the action :: be taken by your Cc missi:n, they clearly are relevant to the timing of :na: acti:n. One ecs: of cb:aining :ne p:ver :: replace that which would be provided by TMI-l is en the c de: of'il4 million a =cn:n and constidutes a =urden.:o which our custe ers sneuld no: be subjected any lenger than is ,necessary : provide reasons:le assu:ance of safe Operatica. Similarly, the necessiny ::
i=per :::e than 7 million carrels of oil pe: yed: c *
- eplace TM:-1 generatien should -be ended as socn as such assurance can be cc:ained. .
In establishing the peccedures f : the fur the r proceedings, ve urge ec:h tha: the dereg:!ng fae: cts receive adequate censideration and tha: your C ==issien '
consult with.:ne PaPUC and NJ3PU to obta n the' views of
- these agencies.
Sincerely,
- v. c. ts W. G. Kuhns Chair an cc: Hen. W. Wilson Goede, Chair:an Pennsylvania Public . Utility Concission., e Hen. George H. Bar: cur, Pr esiden: -
3 card of Pueli Utilities of the *
- State of New-Jersey g .
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NUCLEAR REGULATORY COMMISSIONI - cQ o :, -C.m~., a Ae n ~ ,'N m
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In the Matter of )
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DOCKET N . 50-289 METROPOLITAN EDISCN CCMPANY )
)
/g Three Mile Island Nuclear ) .- y, Station, Unit No. 1 ) j, U mp;ns.
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Ci. .~ ' '.".- : *? : .** M C L ' " ' IN LICENSEES' ANSWER TO CCMMISSION CRDER DATED JULY 2, 1979
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- ;h This answer to the Cc= mission's order dated July 2, 1979, is filed on behalf of Metropolitan Edison Company, Jersey Central Pcwer & Light Company and Pennsylvania Electric Ccmpany (Licensees) as co-owners of Three Mile Island Nuclear Staticn, Unit No. 1 (TMI-1).
The Commission's July 2 crder recuires that TMI-l remain in a shutdown condition until further order of the Ccm-l mission, provides for a hearing to precede restar of the facility, and states that a further order specifying the proce-dures to govern further proceedings in this matter will be issued within 30 days.
On July 12, 1979, the Commission receired a presenta-tion by its Executive Legal Director with respect to proce-dures for sucn further proceedings. Wnile a nu=cer of prc-cedural alter.J.tives were presented to the Cc mission, all of DUPLICATE DOCUMENT tly stated "assump icn" tha: the Entire document previously entered into syste7 under: be a "ad gdicatory-L9c hearing".
^NO ~7910040lM > 0 7 9 1G- 0
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No. of pages: b
1 As more fully 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 utili:-
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 licensing 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 ccmment under Section 4(a) of the Admini -
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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NUCLEAR REGULATORY COMMISSICN
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JUL 9 1073 .
ME!'OPW3CU't FCR: Chairman Hendrie C0::issioner Gilinsky C:::issioner Xennecy ,
. . Cor:missicner Bradford Cer:missfener Ahearne FEC!i: Howard K. Shapar Executive Legal Director THRU: Lee V. Gossick -
89.'
Executive Direct:r f:r C;eratiens
SUBJECT:
DISCUSSICil CF P:.CPOSEO FEC'/IS!CNS RCLATI?'3 TO HEAR!NG TO BE CCNTAI S IN CC:01I3SICN'S FUR MER CRCER IN THE T"R:~:~
n .'! A :.' ' c..'uo". ' u^ '..'5' 1* .
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-~ v'i . i2' Intr: duction On July 2,1979, the C:=issica ordered tha; the Three liile' Island 'lni: 1 reactor re ain in :01c shute:wn ::nci:icn until furter Order Of t."e %=.issi:n itself. The Order also previced es the C:=is:icn v.cui: issus a furt.er Order within thirty days spect fying in de:sil the bases f:e its ::ncerns, and the pr:cadures :: govern the hearing ,inich the C =issicn direc:ad te hele prior :: restart of the fa:ility. The Staff 'vas asked :: provida' (i) a listing of areas Of tecnnical c:ncern :: be resolvec in ::nnecti:n with any res:ar Of Thrae B!ile :sland Uni: 1, and (2) a dis:us:icn of the Staf 's views :n ne pre.
ceduras :: g:ver t further ;recaecings in =is a- ar. This receran:::
acdresses ce ::::er of ;irecedures; 3taff views On the tacnnical areas cf concern will be pr: viced by NRR cn or before July 20, 1979.
The Cc=ission's further Order should address at leas the foll wing matters relating : the hearing: (1) juriscic:icnzi structure, i .e., casi:nati:n Of presiding Officar, a;:ellate jurisdic:icn, anc decision form; (2) jrecacurai framewcrk; and (3) designatien of issues :: te heare. This mercrancum exclaras the. alter atives availacle to the C =.issien and presents cur . ec:=endati:: in the three areas. It assumes that an adju icat:ry-ty:e nearine will te ., ele and -
that the Cc=ission itself intends to c::;1e:e i:s review of the issues relating directly to restar: of the facility prior :: lifting the suspension of ;eratien.
Contact:
G. Cunningham, ELO .
X27575 f .
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' 'The Cc= issicneri We further c:nsider the hearing as one
- required by statute" to which the adjudi-catory previsicns of the Administrative ?rececure Act a:Pl y; i.e., we treat the hearing c:ntemplated by the Cc:=issien's Crder as the hearing EEicn wculd te required by llaga of the Atcaic Ener;y Act if any person whose interest may be affected by this sus;ensica pr:ceeding snculd request a hearing. If there should be no petitien for leave to intervene frcm an interested persen, the hearing wculd have been granted purely as a'discretienary matter and the Cc missica would have broad discretien to tailor precedures fer such a hearing. Since that event-uality seems very unlikely, we do not include a discussica of precedures fer cen-duct of a purely discretionary hearing. ,
. Jurisdictienal Structure Under the Administrative Precedure Act, the Atc=ic Energy Act, and the Cc==issicn's regulatiens, the Ccamissica can c:ncuct the hearing itself or designate ene cf its adjudicat:ry boards to preside. ,
The Administrative Precadur.e Act recuires that the presiding officer (cr board) in an adjudicatica render an initial cecision er a rec::= ended decisten,1/
exc.ept in cases involving initial licensing, ;ast reas:na:1eness Of possibly, when ene er cre of the Cc mis:icners themselves preside., rates 7 ce, Actinistra:fve Procedure Act, 5 U.S.C. iiE54(d) and 557(b). This =r:ceeding invcDies sus:ensi:n of a license and clearly cannot be c:nstrued as initial ifcensing. CSc:in v. FPC, 250 F.2d 2g4 (0.C. Cir. 1957). .See also U.S.' Senate, 79th Cong., 2d sess.,
Lecislative 41sterv of the acministr2tive Prececure Act (Senate Cccurent 9233) at pp. Zio, 226, 2e s i:-o f ., ine suggesc:cn or ncensee s counssi that there le an adjudicatcry hearing beard which would then certify the reccrd t: the C:::iss Mn.
for decisien as was dene in the Ac endix' I and ECCS ruiemaking pr:ceecing.s (wher3 no initial cr rec::=enced decisica was rancered) is, theref:re, inc:nsistent with the Administrative ?recedure Act. 2/ - (See letter frca 3. F. Trewbrid:e tc Chair:aa
~
Hendrie dated July 2, 1979.)
The major cptiens available to th. C:: issien en this questien are set f:rth bel:w, along with a discussica of each optien and. cur rec:::encaticn for provisicns of the Ccamission's anticipated Order. ,
1/ The' difference between the two in this instance is not great'since the C:: issien has already determined that it will review the rec:r: established in the hearing.
and render its cwn final decisien. A rec::: ended decisica sis no. thing ::re than that and requires agency review of the entire rec:rd and issuance cy t.he agency of its cwn decisten, while review cf an initial cecisien may be c:nfinec tc the excepticas taken by an a;;ealing party. .
2/ There is an exce:tien which :ermits an agency tc c it the initial er rec:: ended decisien in cases "in which tne agency finds en the rec:rc that due and timely executien cf its functicas imperatively and unavoidably so requires.* 5 U.S.C.
5557(b)(2).. , .
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_a.s/ t .1 _H_ earing File 1 .r s.s ___ 1 N; CO ' \ UNITED STATES OF AMERICA kj'4b3M. p N%,
. NUCLEAR REGULATORY CO:OiISSICN In the Matter of
)
)
"~~~"
METROPOLITAN EDISON CCMPANY ) Docket No. 50-289
~
I
) {
Three Mile Island Nuclear )
Station, Unit No. 1 )
LICENSEES' PISPCNSE TO NRC STAFF MEMO AND P2?LY OF JULY 25, 1979 Were it not for the importance to the National anf public interest of the question presented, we would not burden the Cc=missica with another submittal relating to the precedures to be employed in connection with the resolutica cf the issues relating to restart of niI-1.
But this is not a S54 or $64,000 question.
STKr.E Ur:ARY CF ' ~
It is a question involving: G e m .si U b ev e (a) the National interest in reducing CC,:
- 9. 7c l 3. 3.
fuel i= ports by as much as 14 million bar-G yj; m et 5.h h sik: : 5-
- rels of oil; @ podt:q Dec":C (b) the National interest in reducing foreign balance of trade deficits by as much as $350 million:
~
(c) the public interest of the four million residents in ha of New Jersev and Penns-DUPLICATE DOCUMENT l .
Entire document previously entered into system under:
ANO '] 0 5 0 l 'Z D O } h No. of pages:
I
w s/
subjected to unnecessary costs of electric service by as much as $350 million. ,
, Clearly, stakes of this magnitude justify a further effort to determine whether the joint objectives of the Ccm- ,
mission and the Licensees can be achieved, but within a time frame that does not inpair these National and public interests.
Let us first examine the areas in which there is no disagreement.
- 1. The Commission cannot permit restart of TMI-l unless and until it is satisfied that the public health and safety no lenger require suspension; indeed, the Licensees do not wish the Ccmmission to lift the suspension unless and until it is so satisfied; .
- 2. The Commission determined, in its July 2 , 1979, order, that it wished to have public hearings before reaching a deternination as no whether it is so satisfied; the Licensees do not object to such a public hearing and, under the circum-stances, believe that such a public hearing is desirable;
- 3. The proceeding relating to restart is not governed 4
by Section 199a of the Atomic Energy Act or the Administrative Procedure Act. The July 25, 1979, reply of the NRC staff points out (at page 3) that the proceeding to be held prior to restart does not necessarily entail a formal hearing, even when one has been requested.
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