ML19347B422
| ML19347B422 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 10/10/1980 |
| From: | Swanson D NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-SP, NUDOCS 8010150055 | |
| Download: ML19347B422 (10) | |
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STAFF:
10/10/80 4
UNITED STATES OF NIERICA fiUCLEAR REGULATORY COM;11SSION BEFORE THE AT0'11C SAFETY AND LICENSING BOARD In the Matter of
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METROPOLITAN EDIS0N COMPANY, ET AL.
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Docket tio. 50-289
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(Restart)
(Three Mile Island fluclear Station,
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Unit 1)
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flRC STAFF RESP 0fiSE TO TMIA'S MOTI0fis I.
If4TRODUCTION On September 22, 1980, TMIA submitted two motions in this proceeding related to its contention 5 regarding the management capability of the licensee to operate TMI-1. These documents are entitled " Motion for Appointment of Expert to Assist The Board in Reviewing Work Requests Placed Into Evidence 4
By TMIA" (Motion for Expert) and " Motion for Surrebuttal Testimony." Both I
3 motions arise out of the manner in which TMIA is presenting its case on its Contention 5.1/
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1 As a result of TMIA's failure to respond fully to Licensee's interrogatories on TMIA Contention 5, and its resultant failure to provide the Licensee and Staff with sufficient information to prepare evidence on the contention sufficient for a complete record, the Board directed TMIA to lead off the proceeding by presenting its affinnative case on Contention 5, with an 1/
Although TfilA did not so specify, its motions contain references to subject natter contained in its Contention 5.
Accordingly, the Staff interprets TMIA's motions as applying only to its Contention 5.
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. opportunity later in the hearings for the Licensee and Staff to rebut TMIA's affirmative case. Tr. 2016-28; Memorandum and Order of Prehearing Conference of August 12-13,1980 (August 20, 1980) at 4.
The Board cautioned TrilA counsel, however, that it did not expect TMIA to come forward and offer into i
evidence a large volume of work orders or other documents, uninterpreted by en expert witness.
Tr. 2127. The Board further cautioned TMIA that it could not expect the Board to do TMIA's job of analyzing raw data and draw-ing its own conclusions as to what it means.
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P Apparently unsatisfied with the approach taken by the Board, TMIA now seeks to have the Board conduct its own independent review of the Licensee's maintenance history, and to be pemitted to put on a second round of testi-mony after the Staff and Licensee have conducted their rebuttal of TMIA's case on its Contention 5.
The NRC Staff's response in opposition to the motions is set forth below.
II. DISCUSSION A.
Motion For Appointment of Expert TMIA, in its Motion For Expert, moves the Board to appoint independent experts to study and report to the Board their opinions on the practice and procedures of the Licensee as it relates to the management of TMI-1. Motion For Expert at 1.
In the Motion, TMIA seeks to have the Board conduct an independent review of the scope of TMIA's contention on management capability, and make its review staff available as witnesses in the hearing.
In essence, Y
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TMIA seeks to have the Board perform the function that TMIA has failed to perform in spite of the Board's previous ruling that it will not do so.
See, Tr. 2127.
TMIA offers no basis in law for its argument that the Board should perform l
l an independent review function similar to that which the Staff, the Licensee, and presumably, the Intervenors are performing.
This is not surprising in lijht of the Appeal Board's decision in an analogous situation involving a l
construction permit application. The Appeal Board declared:
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"A licensing board in a construction permit proceeding such as l
this is expected to evaluate independently and resolve the appropriate contentions of the various parties, to assure itself that the regulatory staff's review has been adequate, then to inquire further into areas where it may perceive problems or find a need for elaboration.
If it finds itself not satisfied with the adequacy or completeness of the Staff review, or of the evidence presented in support of the license application, it may, for example, reject the application, or it may require further develop-ment of the record to support such application.
In that connection, it may issue an order which in effect requires one or more of the parties to perform additional research.
But for the Board to duplicate the role of the Staff, or for it to perform independent basic research, is inconsistent with its adjudicatory role and beyond the scope of its delegated authority." Consumers Power Company (Midland Pland, Units 1 and 2), ALAB-123, 6 AEC 331, 335 (9173).
Using the Appeal Board's guidance regarding the role of a licensing board in a construction permit proceeding as a guide, the Staff concludes that what TMIA is requesting is contrary to established regulatory law.
Moreover, the Staff submits that TMIA has offered no justification for the l
Board taking such an extraordinary step as to hire a technical staff, even 4
i l if such action were in fact authorized. What TMIA seeks to have the Board i
do, in effect, is to prejudge the evidence on the management capability issue and to find the Staff and Licensee to have inadequately reviewed the issue or to have made improper conclusions regarding the Licensee's manage-ment capability.
In support of this position, TMIA argues that the Staff has consistently refused to examine in detail the areas of deferred and inadequate maintenance conducted by the Licensee, and that the failure to adequately maintain all components of the TMI-2 Unit contributed signifi-cantly to the accident.
Motion For Expert at 2.
TMIA cites no staff docu-ments in support of its assertion that the Staff has refused to examine the areas of deferred and inadequate maintenance.
In fact, that assertion is not correct.
The Staff, through its Office of Inspection and Enforcement (I&E), conducted a sampling inspection program prior to the accident at Unit 2.
None of the inspections detected flagrant deferrals of necessary maintenance. Moreover, the Staff considers the past maintenance practices of the Licensee, if at all deficient, to be of limited value in assessing the current management capability of the Licensee in light of the changes in management, plant organization, maintenance policies and procedures, and the current conduct of maintenance activities being performed for TMI-1. As the Licensee indi-cated in Section 5 of its Restart Report, it has proposed preventive and corrective maintenance groups for operation, and has assigned separate maintenance personnel to each working shift.
This proposal has been imple-mented and its effectiveness is being evaluated by I&E.
The results of the I&E review will be presented in Staff testimony.
The Staff submits that the p-
--. present inquiry should focus primarily on an evaluation of the current f
maintenance efforts for TMI-1, rather than the past practices of the Licensee.
s The Perfontance Appraisal Branch inspection and other I&E inspections over the last several r.onths have included, among other things, inquiries into the adequacy of maintenance at TMI-1 since the accident at Unit 2.
In addition, I!tE has reviewed the depositions taken by TMIA, has identified
> areas of concerns based on the TMIA depositions, and has evaluated those concerns.
For those concerns which were determined to require further probing, I&E conducted special investigations.
The results of these I&E investigatio.ns will be transmitted to the Board and the parties in the fonn of testimony or responses tm Board concerns.
Accordingly, it is the the Staff's view that TMIA's arguments in support of the appointment of one or more experts to assist the Board in evaluating the past practices of the Licensee in the area of maintenance are without merit and that TMIA's request in this regard should be denied.
B.
Motion For Surrebuttal Testimony In its Motion For Surrebuttal Testimony, TNIA argues that it should be per-mitted to present surrebuttal testimony since it has been forced to present l
its case-in-chief out of sequence and prior to the Staff's issuance of that portion of its Safety Evaluation Report dealing with the maintenance issue.
TMIA acknowledges in its motion that the reason for having to present its i
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direct case out of sequence is that the Board has ruled that TMIA failed to
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supply discovery information requested by the Licensee.
TMIA notes that it takes issue with that Board ruling.
THIA further alleges that it has reason to believe that funds may become available to it in the future, and that it might be able to develop further testimony later if it were permitted to introduce it.
TMIA is correct in stating that the reason for having to file its case in advance of the Staff's issuance of its SER on management capability is TMIA's failure to respond to discovery request of the Licensee.
Indeed, the Board cited as its only reason for not granting Licensee's motion for sanc-tions against TMIA for failure to respond to interrogatories that the issue of Licensee's management and technical competence is very important.
Board's Memorandum and Order of August 20, 1980, supra, at 4 The Board indicated that, based on TMIA's failure to respond to discovery requests, the Staff and Licensee had not been provided with sufficient information from TMIA to prepare evidence on TMIA Contention 5 sufficient for a complete record.
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Consequently, the Board ordered TMIA to put on its affirmative case out of order, and before the portion of the Staff's SER was to be issued on the management capability issues.
However, TMIA now seeks to have it both ways.
Under TMIA's proposal, not only would it not have its contention dismissed from the proceeding in exchange for responding to the Licensee's interroga-tories at the start of the proceeding, but it would have the additional advantage of putting on additional testimony after the Staff and Licensee had put on their cases, an advantage which is not even granted to a party in I
i a nonnal situation where there has been no default in the party's discovery obligations.
The Staff submits that TMIA's proposal would create an inequi-table situation which is not justified in the circumstances.
TMIA further argues that "there is reason to believe that funds will become available to TMIA" to support the production of testimony for TMIA on the management capability issue.
This argument comes at the eleventh hour, with the hearing near its start.
If TMIA were pennitted to gain an indefinite extension of time to prepare testimony each time it claimed to be on the verge of obtaining additional funds, it could of course await the presenta-tion of evidence by the Staff and the Licensee and, if it thought its case needed shoring up, it could once again claim that money might be available and that it should be granted the opportunity to produce more testimony.
Such a procedure would result in an unmana:eable schedule for conducting hearings.
Moreover, as was indicated earlier, TMIA has not presented a valid argument for a need for additional testimony to be presented on the past maintenance practices of the Licensee.
The Staff has investigated these matters, and the results of the investigations will be prepared and r
presented to the Board in this proceeding.
It is for the Board, not TMIA, to judge whether the matter has been investigated sufficiently for the purposes of this hearing.
Additionally, the Licensee's record on maintenance at TMI must be evaluated in light of the changes that have been made in the management structure and in the maintenance policies and procedures at the facili ty.
8-The Board must, therefore, evaluate the issue on the basis of the entire record rather than prejudging the evidence at this point and deciding that TMIA must be given the opportunity to produce further testimony.
Should TMIA subsequently uncover truly significant new information related to the issue of management capability, it could at that time move the Board for an opportunity to present further testimony.
Until such a demonstration has been made by TMIA, however, it is premature for this Board to make a ruling on the need for surrebuttal testimony by TMIA.
I CONCLUSION Based on the foregoing, the Staff urges the Board to deny TMIA's motions for the appointment of an expert to assist the Board and for surrebuttal testimony.
Respectfully submitted, h& 5 W I
Daniel T. Swanson Counsel for NRC Staff i
Dated at Bethesda, Maryland this 10th day of October,1980 l
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UNITED STATES OF AMERICA m
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
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MEIROPOLITAN EDISON COMPANY, ET AL.
)
Docket No. 50-289
)
(Restart)
(Three Mile Island Nuclear Station,
)
Unit 1)
)
CERTIFICATE OF SERVICE I hereb'y certify that copies of "NRC STAFF RESPONSE TO TMIA'S MOTIONS" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, th' rough deposit in the Nuclear Regulatory Commission's internal mail system, this 10th day of October, 1980:
Ivan W. Smith, Esq.*
Mr. Steven C. Sholly Atomic Safety and Licensing Board 304 South Market Street U.S. Nuclear Regulatory Commission Mechanicsburg, PA 17055 Washington, DC 20555 Mr. Thomas Gerusky Dr. Walter H. Jordan Bureau of Radiation Protection 881 W. Outer Drive Department of Environmental Oak Ridge, TN 37830 Resources P.O. Box 2063 Dr. Linda W. Little Harrisburg, PA 17120 5000 Hermitage Drive Raleigh, NC 27612 Mr. Marvin I. Lewis 4
6504 Bradford Terrace George F. Trowbridge, Esq.
Philadelphia, PA 19149 Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.
Metropolitan Edison bompany Washington, DC 20006 ATTN:
J.G. Herbein, Vice President Karin W. Carter, Esc.
P.O. Box 542 505 Executive Lvuse Reading, PA 19603 P.O. Box 2357 Harrisburg, PA 17120 Ms. Jane Lee R.D. #3, Box 3521 Honorable Mark Cohen Etters, PA 17319 512 E-3 Main Capital Building Harrisburg, PA 17120 Senator Allen R. Carter, Chairman Joint Legislative Committee on o
Walter W. Cohen, Consumer Advocate Energy Department of Justice Post Office Box 142 Strawberry Square, 14th Floor Suite 513 Senate Gressette Building Harrisburg, PA 17127 Columbia, SC 29202
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f Daniel M. Pell, Esq.
John Levin, Esq.
ANGRY PA Public Utilities Commission 1
32 South Beaver Street Box 3265 York, PA 17401 Harrisburg, PA 17120 John E. Minnich, Chairman Jordan D. Cunningham, Esq.
Dauphin Co. Board of Commissioners Fox, Farr and Cunningham Dauphin County Courthouse 2320 North 2nd Street Front and Market Streets Harrisburg, PA 17110 Harrisburg, PA 17101 Theodore A. Adler, Esq.
Robert Q. Pollard Widoff, Reager, Selkowitz & Adler 609 Montpelier Street P.O. Box 1547 Baltimore, MD 21218 Harrisburg, PA 17105 Chauncey Kepford Ms. Ellyn R. Weiss Judith H. Johnsrud Sheldon, Harmon & Weiss l
Environmental Coalition on 1725 I Street, N.W.
Nuclear Power Suite 506 433 Orlando Avenue Washington, DC 20006 State College, PA 16801 Atomic Safety and Licensing Board Ms. Frieda Berryhill, Chairman Panel
- Coalition for Nuclear Power Plant U.S. Nuclear Regulatory Commission Postponement Washington, DC 20555 2610 Grendon Drive Wilmington, DE 19808 Atomic Safety and Licensing Appeal Panel (5)*
Ms. Karen Sheldon U.S. Nuclear Regulatory Commission Sheldon, Harmon & Weiss Washington, DC 20555 1725 I Street, N.W.
Suite 506 Docketing and Service Section (7)*
Washington, DC 20006 Office of the Secretary
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U.S. Nuclear Regulatory Co= mission Ms. Marjorie M. Aamodt Washington, DC 20555 R. D.
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Coatesville, PA 19320
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'irer Daniel T. Swanson Counsel for NRC Staff I
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