ML19347B412

Response in Opposition to Ucs 800930 Request for Certification Re Schedule Extension.Ucs Reading of Section III(2) of Commission 790809 Order Is Legally Incorrect & Inconsistent.Certificate of Svc Encl

ML19347B412
Person / Time
Site:	Three Mile Island
Issue date:	10/07/1980
From:	Trowbridge G METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-SP, NUDOCS 8010150007
Download: ML19347B412 (7)

Text

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LIC 10/7/80  ;

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.a e l UNITED STATES OF AMERICA /u - '*7-h o%

NUCLEAR REGULATORY COMMISSION

, " ; h BEFORE THE ATOMIC SAFETY AND LICENSING BO "c, > 4.- )

i - :Ae.."1 {'%y N/

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l' In the Matter of ) Nr#

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METROPOLITAN EDISON COMFANY ) Docket No. 50-289

) (Restart)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

LICENSEE'S RESPONSE TO UCS REQUEST FOR I CERTIFICATION TO THE COMMISSION On September 30, 1980, UCS filed a request for certification to the Commission challenging the propriety, as applied to TMI-1, of the Staff's announced intention to extend the schedule on which operating reactors must comply with certain Category B requirements listed in Table B-1 of NUREG-0578. The UCS challenge hinges on its interpreta-tion of Section III(2) of the Commission's Order and Notice of Hearing dated August 9, 1979, which reads as follows:

"(2) the licensee shall satisfactorily complete the long-term actions listed in Table B-1 of NUREG-0578 on the schedule set out in such table and such other long-term actions listed above as promptly as practicable."

UCS reads this provision as an immediately effective order j of the Commission freezing for TMI-l the completion dates i for Category B items proposed in Table B-1 of NUREG-0578,  !

so as to render those dates beyond the reach either of the l

1 801015000?

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Director of Nuclear Reactor Regulation or the recommendations of this Board.

Licensee opposes UCS' request on the grounds that UCS' reading of Section III(2) is legally incorrect and en-tirely inconsistent with other provisions of the Commission's August 9, 1979 Order and Notice of Hearing.

1. The leaal effect of Section III(2) . It should be noted at the outset that Section III, the " ordering" section of the August 9, 1979 Order, has two numbered clauses. Clause (1) orders Licensee (a) to maintain TMI-l in a cold shutdown condition until further order of the Cc= mission, (b) to complete prior to restart required short-term actions as determined by the Ccmmission, after review of the Licensing Board's decision, to be necessary and sufficient to provide reasonable assurance of the public health and safety, and (c) to make reasonable progress toward those required long-term actions " referred to in Section IV" of the Commission's Order.Section IV in turn covers only those long-term actions which the Commission had required prior to August 9, 1979, or might thereafter require, 1/

"by immediately effective orders against other licensees."-

Clause 2 of Section III deals with other long-term actions recommended by the Director of Nuclear Reactor Regulation not covered by immediately effective orders against other licensees, 1/ No such immediately effective orders have been issued by the Commission against other licensees with respect to the Category B items of Table B-1 of NUREG-0573.

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including Category B items in Table 3-1 of NUREG-0578.

Ehat UCS overlooks is that the Commission's August 9, 1979 Order makes only clause (1) of Section III immediately effective. See the first sentence of Section IV of the Order.

Clause (2) is not made immediately effective. The latter 2

clause is thus in the same legal posture as any non-immediately l effective provision of a show cause order issued pursuant to

, 10 CFR 2.202 or an order for a license modification pursuant to 10 CFR 2.204. It is in effect a proposed order (consistent with recommendations at that time of the Director of Nuclear Reactor Regulation) the propriety of which (or in this case the necessity for and sufficiency of which) is to be determined on the basis of a hearing record. The schedule for completion of Category B items may be a prcper issue in this proceeding, but it is clear that as to those items the Commission has not at this time mandated completion dates for TMI-l since the  ;

l Ccmmission has not issued immediately effective orders against 1 l

other licensees establishing such completion dates.

2. The inconsistency of UCS' position with other provisions of the August 9, 1979 Order. UCS' improper reading of the legal effect of Section III(2) is also inconsistent with

.the clear intent of other provisions of the Commission's Order 2/

with respect to long-term items.- These provisions make it 2/ As noted by UCS in its request for certification, the ter- l minology of the Commission's August 9, 1979 Order clearly classifies the Category 3 items in Table B-1 of NUREG-0578  !

as long-term for purposes of the Order.

clear that the Commission did not intend to remove either the necessity for or the timing of completion of Category B items 3/

from the issues to be decided in this proceeding.- Thus,Section I of the Order recites the Commission's finding that the Commission "has determined that certain additional long-term actions are . . . required to be completed as promptly as practicable, and that reasonable progress on the ccmpletion of such actions prior to restart is required." (Emphasis supplied)

In introducing the long-term actions recommended by the Director of Nuclear Reactor Regulation (including compliance with the Category B recommendations as specified in Table B-1 of NUREG-0578)Section II further states: "The Commission has additional concerns, which, though they need not be resolved orier to re-sumption of cperation at Three Mile Island Unit 1, must be satis-factorily addressed in a timely manner." (Emphasis supplied)

Section V of the Order, in defining the issues to be considered in the hearing, states with respect to long-term actions that the issues include not only the necessity for and sufficiency l of such actions but whether they "should be required of licensee as soon as practicable." (Emphasis supplied) Finally,Section VI of the Order, which establishes the conditions under which the Commission may lift the suspension of TMI-l's operating

-3/ UCS' position that the Commission intended to freeze the date by which Category B items must be completed makes no sense unless UCS also contends that the Commission meant to freeze the Category B requirements themselves. Such a contention would lead to the absurd conclusion that the Commission meant to exclude Category B items from other long-term actions which are to be judged as to necessity and sufficiency under Section V of the Commission's Order.

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authority prior to a final decision, requires as a precondi-tion to lifting the suspension only the completion of short-term actions and those long-term actions as to which the Commission has issued immediately effective orders against other licensees. As previously indicated, no such orders covering Category B items have been issued. Thus throughout its Order the Commission recognized that long-term actions recommended by the Director of Nuclear Reactor Regulation need not necessarily be completed prior to restart and that their completion would not only be dependent on findings by the Board and Ccmmission as to the necessity for and suffi-ciency of the actions but that completion dates would be governed by determinations as to how soon such completion is practicable .

For the above reasons UCS ' request for certifica-tion should be denied.

Respectfully submitted, SHAW, PITTMAN, POTTS & TRCWBRIDGE Sy . ] ffs) ', ffW '

./

George h'. Trowbridgd Dated: October 7, 1980 I

i LIC 10/7/80 '

UNITED STATES OF AMERICA

, NUCLEAR REGULATORY COMMISSION i

i BEFORE THE ATOMIC SAFETY AND LICENSING BOARD j

t In the Matter of )

)

METROPOLITAN EDISON COMPANY ) Docket No. 50-289

) (Restart)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Response to UCS Request for Certification to the Commission," dated October 7, 1980, were served upon those persons on the attached Service List by deposit in the United States mail, postage pre-paid, this 7th day of October, 1980.

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[eorgeF Trowbridge

. 1 Dated: October 7, 1980 -

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SERVICE LIST Ivan W. Smith, ~ @ e Walter W. C ien, Fscuire C a%an Censuner Mvecate Atmic Saferf and Licensirg Scard Office of Censuner Advocate U.S. Nuclear Pagulater! C=rissicn 1425 Strawberry Square Washingtcn, D.C. 20555 Harrisburg, Ferrsf lvania 17127

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t Dr. Walter H. Jcrdan Jcrdan D. Curringham, Escuire Atcmic Safety ard Licensing Scard Fox, Fa= & Ctr:ningham 881 West Cuter Drive 2320 Ncrth Secend Street Cak Ridge, Terr.essee 37830 Harrisburg, Perrsfivania 17110 1 Dr. Linda W. Little e.eodcre A. Mler, ~s~uire i Atcmic Safer / and Licensing Scard Wideff Peager Selkcwit: & Adler 5000 He=titage Drive P. O, Scx 1547 i Raleigh, Ncrth Carolina 27612 Hm r. isburg, Pennsylvania 17105 James R. Tcurtellette, Escuire (4) Ellyn R. Weiss, Esquire Office of Executive Iagal Directer Ha=cn & Weiss I

U.S. Nuclear Regulaterf C:2nmissicn 1725 Eye Street, N.W. , Suite 506 Washingt n, D.C. 20555 Washingten, D.C. 20006 Dccketing ard Ser/ ice Secticn (3) Steven C. Sholly

! Office of the Secretarf 304 Scuch .v2.rket Street U.S. Nuclear Regulatorf Ccrrissicn Mechardesburg, Pennsylvaria 17055 Washingten, D.C. 20555 Caniel M. Fell, Escuire Jchn A. Iavin, Escui:T ANGFY Assis m Ccunsel 32 Scuth Heaver Street Ferrsf l vania Public Utility Ccnrissica Ycrk, Penrsfl varia 17401 P. O. Scx 3265 Harisburg, Pennsylvania 1712C William S. Jcrdan, III, Escuire Hacen & Weiss Karin W. Carter, Escuire 1725 Eye Street, N.W., Suite 506 Assistant AttcIney General Washirsten, D.C. 20006 505 Executive Ecuse P. O. Scx 2257 Pchert Q. Pollard Parisburg, Perrsylvania 17120 609 Montpelier Street Salti:rcre, Marylard 21213 Jchn E. Mi:mid Chai=an, Dauchin Ccunef Scard cf Chauncef Fapferd C=rissicnem Judith H. Jchrsrud i

Cauchin Ccunef Ccurthcuse Envi_wental N itien en Nuclear Pcwer Frcnt ard Market Streets 433 Criando Amnue Hacisburg, Perrsfl vania 17101 State Cellege, Perr.sylvania 16801 Marjcrie M. .amcdt .varr_n I. Isais R.D. 5 6504 Bradferd Ten ace Ccatesvil_e, terrsfi vania 19320 Philadelphia, Penrsflvarla 19149 l

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