ML19351F399
| ML19351F399 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 01/06/1981 |
| From: | Cosgrove J, Swanson D NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8101120508 | |
| Download: ML19351F399 (31) | |
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UNITED STATES OF AMERICA t _~
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NUCLEAR REGULATORY COMMISSION l
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BEFORE THE COMMISSION o
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METROPOLITAN EDISON COMPANY
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Docket No. 50-289
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(Restart)
(Three Mile Island Nuclear Station,
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Unit No.1)
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NRC STAFF RESPONS6 TO GENERAL PUBLIC UTILITIES LETTER DATED DECEMBER 1, 1980 J
Daniel T. Swanson i
Counsel for NRC Staff Also on the Response was Joseph E.
Cosgrove, Jr., with this office who has satisfied the examination require-ments for admission to the bar of the State of Kansas, but has not yet been fomally admitted to practice.
January 6,1981 pd SI4 7810 212 060F
e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
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METROPOLITAN EDISON COMPANY Docket No. 50-289 (Restart)
(Three Mile Island Nuclear Station, Unit No.1)
)
NRC STAFF RESPONSE TO GENERAL PUBLIC UTILITIES LETTER DATED DECEMBER 1, 1980 t
Daniel T. Swanson Counsel for NRC Staff Also on the Response was Joseph E.
Cosgrove, Jr., with this office who has satisfied the examination require-ments for admission to the bar of the State of Kansas, but has not yet been formally admitted to practice.
January 6,1981
TABLE OF CONTENTS Page I.
INTRODUCTION..........................
I II. LEGAL ANALYSIS.........................
3 A.
NEITHER THE ATOMIC ENERGY ACT NOR THE ADMINIS-TRATIVE PROCEDURE ACT PRECLUDE THE COMMISSION FROM TAKING THE ACTION RECOMMENDED BY GPU.........
3 1.
Terminating a Proceeding Prior to Hearing 3
2.
Terminating a Hearing Af ter it is Initiated 9
19 B.
LEGAL CONCLUSION.....................
III. TECHNICAL EVALUATION OF RESTART CONSIDERATIONS.........
20 IV. CONCLUSION........................... 22 o
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TABLE OF CITATIONS, Page Judicial Proceedincs:
Supreme Court Amalcamated Utility Workers v. Consolidated Edison Co.,
309 U.S. 261 (1940)........................
17 Gulf States Utilities Co. v. FPC.,
411 U. S. 7 4 7 ( 19 7 3 )........................
10 ICC v. Orecon Pacific Industries, Inc., 420 U.S.184 (1975).....
7 Courts of Appeal Brandenfels v. 3a,
0 316 F.2d 375 ID.C. Cir.1963), cert, denied 375 U.S.
824 (1963).............................
9, 15 Cities of Lexington, 295 F.2d 109 (4th Cir.1961) 10 Concrete Materials of Georoia. Inc. v. NLRB, 440 F. 2d 61 ( Stn Ci r. 19 71)....................
11, 13 Friends of the Earth. Inc. v. United States,
'E 600 F.2d 753 (9th Cir.1979) 6 Georce Ryan Co., Inc. v. NLRB, 6 09 F. 2d 1249 ( 7 th C i r. T579 )...................
12 International Ladies Garment Worker Union, Local 415-475, AFL-CIO v. NLRB, 501 F.2d 823 11, 14, 17 (D.C. Cir.1974)
I.U., U.A., A. AND N.I.W. v. NLRB, 231 F.2d 237 (7th Cir.1956) cert. denied, 352 U.S. 908 (1956) 12 Leeds and Northrup Co. v. NLRB, 357 F.2d 527 (3rd Cir.1966) 11
+
TABLE OF CITATIONS (Continued)
Page LOCAL 282, International Brotherhood of Teartsters v. NLRB, 12, 13 339 F.2d 795 (2nd Cir.1964)
Marine Engineers' Beneficial Ass'n No.13 v. NLRB, 202 F.2d 546 (3rd Cir.1953), cert. denied, 346 U.S. 819 (1953)..........................
11,12,13,18 Minneapolis Gas Co. v. FPC, 294 F. 2d 212 ( D.C. Ci r. 1961)...................
9, 15 NLRB v. International Brotherhood of Electrical Workers.
12, 14 Local 357, 445 F.2d 1015 (9th Cir.1971)
NLRB v. Oil Chemical and Atomic Workers International Union.
7L-C I'0, 4 76 F. 2d 1031 ( 1s t Ci r. 19 7 3 )...............
13, 17 Northwest Airlines v. CAB, 539 F.2d 748 (D.C. Cir.1978).......
7 Oshkosh Truck Corp. v. NLRB 12, 14 530 F.2d 744 (7th Cir776)
Pennsylvania Gas & Water Co. v. FPC, 463 F.2d 1242 (D.C. Cir.1972) 10 People of the State of Illinois v. Nuclear Regulatory Commi s si on, 5 91 F. 2d 12 ( 7 th Ci r. 19 79 ).............. 19 I
Porter County Chapter v. Nuclear Regulatory Commission, 19 606 F.2d 1363 (D.C. Cir.1979)
's Public Service Company of New Hampshire v. Nuclear Regulatory Commi ssion, 582 F.2d 7 7 (1st Ci r.1978)..............
19 Siegel v. AEC, 400 F.2d 7 78 (D.C. Ci r. 1968)................... 17, 19 Terminal Freight Cooperative Ass'n. v. NLRB, il~
447 F.2d 1099 (3rd Cir.1971), cert. denied, 11 j
409 U.S. 1063 (1972)
Textile Workers Union of America v. NLRB, 294 F. 2d 738 (D.C. Ci r. 1961)...................
12 I
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TABLE OF CITATIONS (Continued)
Pace Union of Concerned Scientists v. Atomic Energy Commission, 499 F.2d 1069 (D.C. Cir.1974) 7, 19 Westinghouse v. NRC, 598 F.2d 759 (3rd Cir.1979) 18, 19 NUCLEAR REGULATORY PROCEEDINGS Consumers Power Co. (Midland Plant Units 1 and 2),
CL1-73-38, 6 AEC 1082 (1973) 4,5,7 Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), Docket No. 312................
6 loledo Edison Co., et al. (Davis-Besse, Unit 1), Docket No. 50-346 (SP)..........................
6 Statutes 5 U.S.C. I 551 of Administrative Procedure Act (APA) 14 29 U.S.C. I 153(d)..........................
17 42 U.S.C. I 2239, Section 189a of Atomic Energy Act ( AEA)......
3,4,7,8
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Regulations 10 C FR i 2. 2 0 2 ( f )..........................
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10 CFR i 2.204............................
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I 10 CFR 9 2.717(b)..........................
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TABLE OF CITATIONS (Continued) t YGh5 Other 100 Cong. Rec. 10181 (1954).....................
4 NUREG - 0694
............................ 20 NUREG - 0737 70, 21 E
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289
)
(Restart)
(Three Mile Island Nuclear Station,
)
Unit No.1)
)
NRC STAFF RESPONSE TO GENERAL PUBLIC UTILITIES LETTER ATED DECEMBER 1, 1980 I.
INTRODUCTION On December 1,1980, Herman Dieckamp, President of General Public Utilities Commission, sent a letter to the Chaiman of the Nuclear Regula-tory Commission asking that the Commission Orders of July 2,1979 and August 9,1979 be modified in order to allow Three Mile Island Nuclear Station, Unit 1 (TMI-1) to restart prior to the completion of the TMI-1 adjudicatory proceeding which is now in progress. The Dieckamp letter did not propose I j.
that the TMI-1 hearing be cancelled, but, instead, that the hearing be allowed to proceed on its course until the Commission's review of and final action on the ASLB's recommended decision. The Commission, in an Order dated December 9, 1980, invited other parties to the TMI-I proceeding to submit any comments they might have on the issues raised by the letter by January 6, 1981. Six intervenors did submit a consolidated response on December 18, 1980 which opposed any change to the Commission's Orders. By this pleading, the Staff is also responding to the Dieckamp letter of December 1,1980, as revised on December 5, 1980.
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The Staff has examined the Dieckamp proposal to amend the Commission's Orders of July 2 and August 9, 1979 from both legal and technical standpoints.
From a legal standpoint, the Staff concludes that the Commission has very broad discretion in directing its activit.ies under the Atomic Energy Act and that it may, if it so chooses, modify its previous Orders and allow restart prior to the completion of the TMI-1 proceeding.
The Staff has also detennined, from a health and safety standpoint, what steps it believes the Licensee should take before Unit I can be restarted and operated. Having considered the Dieckamp proposal, the Staff interposes no legal or technical objection to permitting operation of TMI-I once (1) the Director of Nuclear Reactor Regulation is satisfied that the Licensee has implemented the required items (which the Staff considers necessary and sufficient to provide reasonable assurance that TMI-1 can be safely operated) and (2) the Commission has agreed. Notwithstanding this conclusion, the Staff believes that the issue of whether the public interest considerations referred to by the Commission in its Orders are better served by permitting operation of the facility prior to completion of the hearing, is best lef t to the Commission for resolution.
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r i II. LEGAL ANALYyS A.
NEITHER THE ATOMIC ENERGY ACT NOR THE ADMINISTRATIVE PR0r:7URE ACT PRECLUDE THE COMMISSION FROM TAKING THE ACTION RECOMMENDE. BY GPU 1.
Terminatina a Proceedina Prior to Hearino As a first step in analyzing the NRC's authority to pursue an alternate course of action in the TMI-1 restart proceeding, it is appropriate to consider whether the NRC, after ordering TMI-1 to shut down, was legally required to hold a hearing upon request prior to allowing the facility to restart. Section 189a of the Atomic Energy Act (42 U.S.C. 5 2239, the "Act"), which sets forth the statutory requirement for NRC hearings, pro-vides in pertinent part that interested persons have a right to a hearing in any proceeding for the suspending of any license. A determination as to whether the hearing in the restart proceeding is mandatory turns on whether i
the proceeding is construed as one for the suspending of a license, for which a hearing is required under the Act, versus a proceeding to consider l
whether to lift the suspension, for which no hearing is required by the Act.1!
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1/
It may be noted that Section 189a also requires an opportunity for hearing prior to amending a license. However, the current restart proceeding is by the very terms of the Order a proceeding to determine t
whether or not the suspension of the previously existing license should 1-be teminated.
In other words, the restart proceeding, if it results in a startup of TMI-1, would only cause the reinstatement of the licensee's l
existing rights under the operating license, and would not create any I
new,*ights which could be construed as de facto license amendments. To be sure, there are license amendments whTch have been and will continue l[
to be taken by the Staff in connection with the facility and modifications l
to it as a result of the accident at Unit 2.
However, these actions are independent of the restart hearing and members of the public may l:
request hearings on them. To the extent that the issues in the license amendments overlap the issues in the restart proceeding, the Board of l
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course assumes jurisdiction over them as they relate to the possible restart of Unit 1.
However, the Director of Nuclear Reactor Regulation has the authority pursuant to 10 CFR $ 2.717(b) to amend the Unit 1 license while the Restart Proceeding is ongoing.
4-i In fact, the statute makes no mention of proceedings to lif t suspensions.
The legislative history of the provision supports the Staff's position that the language of Section 189a was carefully chosen to limit the right to a hearing only to certain specified activities, which do not include the 1
liftingofsuspensions.2/ Administrative practice is consistent with this
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interpretation of Section 189a.
In the Midland proceeding, for example, the Director of Regulation had issued a show cause crder which suspended construction of t.he facility and which permitted the licensee and any interested person to request a hearing.
2/
In a colloquy on the Senate floor on July 16, 1954 the provisions of Section 189 were discussed:
Mr. Hickenlooper:
"...This section... clearly specifies the types of Commission activities in which a hearing is to be required. The purpose of this revision is to specify clearly the circumstances in which hearing are to be held...."
Mr. Pastore:
"...that wording (agency action) was though to be too broad, broader than it was intended to make it. The amendment limits the provision to hearing: on licenses in which a review shall take place."
Mr. Hickenlooper:
I "The Senator from Rhode Island is correct. This is a corrective amendment which clarifies the situation."
{
100 Cong. Rec.10181.
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% See, Consurers Power Co. (Midland Plant, Units 1 and 2), CLI-73-38, 6 AEC Af ter an inspection of the facility, the Director issued a 1082 (1973).
second order which modified the prior order, permitting some construction of This order was fol; owed by a request from a member of the the facility.
In its public to have the full provisions of the first order reinstated.
decision, the Commission noted that the suspension of the construction rights of the licensee in a summary manner was a drastic procedure which could result in construction layoffs and increased costs of, construction which could cause increased electricity rates. Consequently, the Commission concluded that the Director had discretion to modify the suspension order prior to the conduct of a hearing where subsequent developments warrant lifting the suspension.
If[. at 1083. If such action were not allowed, it would create a situation where the Director might well be reluctant to issue summary orders, knowing that they must remain unchanged and in effect for Id.2/
substantial periods of time, regardless of changed circumstances.
Such discretionary authority to lift the suspension of a license without holding a prior hearing lies with the Commission as well.
The intervenors in the Restart Proceeding have confused the position of the Executive Legal Director (ELD) regarding the discretion of the 3/
Commission to lift the suspension of a license prior to the conduct of See "Intervenor's Joint Response In Opposition To Licensee's Motion for Reconsideration Of The Commission's Orders of 7/2/
a hearing.
dated December 18, 1980, at 38,39. The ELD specifically referred to the Midland decision, suora, in support of the prc; rition that the Commission See the enclosure to the Memorandum from in fact has such authority.
Howard K. Shapar to the Commissioners dated July 25, 1979 at 1, a copy of which was attached to the Joint Response.
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Moreover, the courts upheld the Commission's lif ting of the famediate suspension order for Rancho Seco, following the accident at TMI-2, without af fording a prior hearing.
In that proceeding, the Commission's earlier order suspending the operating license for Rancho Seco, because of similari-ties between that facility and TMI-2, also provided an opportunity for members of the public to request a hearing on tne aspects of the order.
Notwithstanding the fact that two petitions were received requesting hear-ings, questioning whether Rancho Seco could be safely operated, the Commis-sion lif ted the immediate suspension of the license while pemitting the hearing to continue, concluding that prior hearings were not compelled by law.
~~~
' Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Sta-tion), Docket No. 50-312, Order of June 21, 1979. This action was challenged in the U.S. Court of Appeals, where the Commission action was found not tc be "... arbitrary, capricious, an abuse of discretion, [or] otherwise not in accordance with law."
Friends of the Earth, Inc. v. U.S., 600 F.2d 753, 754 (9th Cir. 1979).O The Staff submits that these decisions indicate that the immediate I
suspension of a license without opportunity for a prior hearing, as was done at TMI, is an extraordinary remedy which is justified only so long as the f'
facts supporting that action exist. When that situation changes the agency may, and arguably must, summarily lift the suspension and restore the original l
l The Commission acted similarly with respect to Davis-Besse, Unit 1, l
4) where it lifted the suspension of the license despite the existence of an outstanding request for hearing. See, Toledo Edison Co, et al l
(Davis-Besse, Unit 1), Docket No. 50-346, Order dated July 6,1979.
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. rightsofthelicense.5/ The second argument contained in the case law is that if the immediate suspension could not be changed without invoking Section 189a hearing requirements, then the agency ray well be reluctant to issue it. Such a situation, it may be argued, would be contrary to the publicinterest.5/
A third argument, which is a corollary to the first, is that the Act and the case law support various kinds of summary action, including not only immediate suspensions of operating licenses, but also licen'se modifications and lifting of suspensions by order where the public health, safety, or interest so requires.M Under this argument, if the Commission could find that the public interest so required, for example, it could lift the suspen-sion of TMI-1 if it found that the reasons for the immediate suspension no longer prevailed, and that there existed a sufficient need for permitting the restart of the facility.
Applying the legal analysis to the TMI-1 factual situation, the Commis-sion's August 9,1979 Order indicates that the Commission intended the
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TMI-proceeding to be a discretionary hearing to consider whether restart of the facility should be permitted, rather than one for the suspending of any license for which a hearing is required under i 189 of the Act. The order l
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See, Northwest Airlines v. CAB, 539 F.2d 748 (D.C. Cir.1978); see also, ICC v. Orecon Pacific Industries, Inc., 420 U.S.184 (19757-(concurring opinion).
f/
See, Midland, supra, at 1083.
y See, UCS v. AEC, 499 F.2d 1069,1081 (D.C. Cir.1974); see also, 10 CFR 9 2.202(f) and 2.204.
i
. established a hearing for the consideration of whether the requirements proposed by the Staff are necessary and sufficient to permit the restart of the facility, and for the hearing record and the hearing board's initial decision to be certified to the Commission to assist it in deciding whether to permit the faci'ity to restart. Order at 10,11.
Furthermore, the July 2, 1979 Order whi.n mandated the continued shutdown of TMI-1, characterized the
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hearing not as one required under Section 189 of the Act, but rather as one which is in the public interest and which should precede restart of the facility. July 2, 1979 Order at 1.
In the August 9,1979 Order, the Com-mission explained that the hearing would fom the basis for a determination whether further operation would be pemitted. Consequently, the Staff regards the restart proceeding as a discretionary hearing. not__r_e_ quired _under Section 189 of the Act.
In sum, the Staff submits that the Commission has clearly established authority to lift a suspension without affording the opportunity for a prior hearing on the temination Of the suspension. The restart proceeding is a discretionary hearing cad, at least until the hearing was initiated, the Commission could have lawfully pemitted restart of the facility without holding a prior hearing.
Implicit in this conclusion is that the Commission also could have pemitted restart of the facility while simultaneously initiating a hearing to consider the conditions for continued operation. A closer legal question is presented, after a discretionary hearing is com-menced by the agency, as to whether the hearing can be teminated or whether the suspension can be lifted prior to completion of the hearing. The Staff's analysis of this point follows.
2.
Teminatina A Hearina Af ter It is Initiated There is a limited amount of law on the subject of the authority of an administrative agency to terminate a discretionary hearing once it has started, and there is no precedent which directly controls, as a matter of law, the solution of the issue presented by the GPU request.
Federal court decisions involving the Federal Power Commission (FPC) and the National Labor Relations Board (NLRB) address this issue, but with conflicting results.
In Minneapolis Gas Co. v. FPC, the FPC initated a discretionary hearing to determine the justness of a rate, completed the evidentiary hearing, and, after an initial decision had been rendered, exceptions filed, and oral argument held on the exceptions, terminated the proceeding without issuing a decision on the merits of the case.
294 F.2d 212 (D.C. Cir.1961). The U.S. Court of Appeals for the D.C. Circuit decided that the FPC could not pursue one course of action almost to the end and then protect its last step by reverting to its discretionary power.
Id_. at 215. However, the court pointed out that it did not have before it, and
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therefore did not have to rule on, the issue of whether an agency may termi-nate a proceeding once entered upon at some point prior to the conclusion of the evidentiary hearing. As to this issue, the court declared that "(a) change of mind, midstream 50 to speak, may or may not be pemissible." Id.
at215.E This case was distinguised by the same court and by other courts l
y The Court of Appeals for the D.C. Circuit held similarly in Brandenfels v.
D_ay, 316 F.2d 375 (D.C. Cir.1963), cert. den. 375 U.S. 824 (1963), where l
the FPC reversed an initial decision because the decision had been prepared by the officer who had prosecuted the charges, but dismissed the proceeding, refusing to continue with hearings. The decision to temina?.e the proceed-ing after the hearing and the initial decision was held to be improper.
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. where proceedings were dismissed af ter being initiated but prior to the start of hearings.E In these cases, the courts have held that the APA provided for discretionary powers on behalf of agencies to settle proceedings without holding prior hearings.
It is also established that an agency may grant a request for leave to intervene in a discretionary proceeding and then terminate the hearing.
In Gulf States Utilities Co. v. FPC, 411 U.S. 747 (1973), the Supreme Court considered the discretionary authority of the FPC to refuse to hold a hearing on an application for authority to issue a security. The relevant statute in that case authorizes the FPC, "... after opportunity for hearing...",
to grant such an application.
In that situation, the FPC filed notice of the hearing. The Commission granted an intervention petition, but then canceled the hearing and granted the license application. The Supreme Court held that the FPC acted legally, concluding that the FPC need not conduct a j
hearing
- e. objections in every case.
In so ruling, the Court declared:
"So strict a rule would unduly limit the discretion the Commission must have in order to mold its procedures to the exigencies of the particular case." Id.
at 762. At the very least, the FPC cases would appear to permit an administra-tive agency such as the NRC to proceed to the point of granting intervention before terminating a discretionary hearing.
It may not, however, complete a hearing and issue an initial decision, cancel further proceedings, and take the administrative action which was at issue in the proceeding.
I y
See, Pennsylvania Gas & Water Co. v. FPC, 463 F.2d 1242 (D.C. Cir.
1972) and Cities of Lexinaton, 295 F.F109 (4th Cir.1961).
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A number of U.S. Courts of Appeals have considered the authority of the National Labor Relations Board (NLRB) to dismiss a hearing after a complaint has been issued.
NLRB proceedings are initiated by the filing of a complaint by the General Counsel to the Board, and are issued solely at the discretion of the General Counsel. N However, once the discretionary act is taken, and the NLRB proceeding is initiated, the courts are split over whether the NLRB can then dismiss the proceeding, and whether the initiation of a proceeding pursuant to the National Labor Relations Act (NLRA) trigger.s certain hearing rights in the party charging the complaint.
At one end of the spectrum, the U.S. Court of Appeals for the Third Circuit, in a case involving the Marine Engineers Beneficial Association, held that a charging party is always entitled to a hearing on its objections to a settlement once a complaint has issued.E This view was reaffirmed by the same court in at least two situations, in which the court refused to extend its holding to cases in which a complaint has not issued.E/ h Concrete Materials of Georgia. Inc. v. NLRB, 440 F.2d 61 (5th Cir.1971),
the U.S. Court of Appeals for the Fifth Circuit ruled that once the complaint 10/ International Ladies Garment Worker Union, local 415 - 475, AFL-CIO
- v. NLRB, 501 F.2d 823, 829 (D.C. Cir. 1974).
11/ Marine Enoineers' Beneficial Ass'n No.13 v. NLRB, 202 F.2d 546 (3rd cir. 1953), cert denied, 346 U.S. 819 (19b3).
M/ See, Leeds and Northrup Co. v. NLRB, 357 F.2d 527 (3d Cir.19C6),
and Terminal Freight Cooperative Ass'n v. NLRB 447 F. 2d 1099 (3d.
Cir.1971), cert. denied, 409 U.S.1063, (1972).
. is issued, the charging party has the right to contest any proposed settle-ment between the NLRB and the charged party in an evidentiary hearing. At the other extreme, the U.S. Court of Appeals for the Second Circuit held that the charging party has no rights at all to a hearing on its objections.
The U.S. Court of Appeals for the Seventh Circuit is in accord with this position taken by the U.S. Court of Appeals for the Second Circuit.D The remaining courts have taken intennediate positions.E 13/ Local 282. International Brotherhood of Teamsters v. NLRB, 339 F. 2d 795 (2nd Cir.1964).
_1,4 / Oshkosh Truck Corp. v. NLRB, 530 F. 2d 744 (7th Cir.1976).
In this I
decision, the U.S. Court of Appeals for the 7th Circuit modified its earlier holding which had adopted the U.S. Court of Appeals f7r the 3rd I
Circuit's holding in Marine Engineers, supra.
(See, I.U., L.A..A. and N.I.W. v. NLRB, 231 F. 2d 237 (7th Cir.1956). cert den., 352 U.S. 908 TT93T). See also, George Ryan Co., Inc. v. NLRlG T0TT.2d 1249 (7th Ci r. 1979).
15/ In Textile Workers Union of America v. NLRB, 294 F.2d 738 (D.C. Cir.
1961), the U.S. Court of Appeals for thTDistrict of Columbia Circuit
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refused to lay down a general rule, insisting rather that:
" Regard must be had to the particular circumstances bearing upon whether or not there would be an abuse of discretion in entering a consent order without a hearing notwithstanding detailed and substantial objections and request for a hearing i,' ;
I_d_. at 741.
thereon."
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Under the circumstances of that case, the court held that the order could not stand without either a reasonable opportunity for the union to be heard on its objections or a presentation on the record of reasons for acceptance of the stipulation, notwithstanding the Union's objectives.
This position was expressly followed by the U.S. Court of Appeals for the Ninth Circuit in NLRB v. International Brotherhood of Electrical Workers, local 357, 4U.2d 1015 (9th Cir.1971).
I P-Those courts upholding the right to a hearing by a charging party af ter the proceecing has been initiated have construed the National Labor Relations Act, as well as the regulations of the NLRB, as providing a right to hearing and decision on any disputed factual issues notwithstanding the fact that the General Counsel and the NLRB have reached a settlement and see no need for any hearings. Although the U.S. Court of Appeals for the Third Circuit in Larine Encineers, suora, concluded that the APA prov' des a right to a hearing on objections to a settlement,E a greater number cf courts have ruled that the APA does not guarantee the charging party a hearing even thoughacomplainthasissued.b 16f Marine Engineers, supra, at 549.
1Jf The U.S. Court of Appeals for the First Circuit, although finding that the NLRA did provide for such a hearing, concluded that the APA cannot be construed to provide a right in a charging party to obstruct the ability of the NLD.B to settle proceedings. NRLB v. Oil Chemical and Atomic Workerc interne'.f onal Union, AFL-CIO, 476 F. 2d 1031,1034 (1st Cir). The court re:'4ned that the charging party would then have a complete veto on t':: public interest in compromise, citing the holding in Lopal 282, IBT, supra. Moreover, the U.S. Courts of Appeals for the First'and Second Circuits expressly held that "the Legislative history of the APA indicates that Congress did not intend more than to insure the availability of infomal means of settlement [in enacting 6 5(b) of the APA, 5 U.S.C. l 554(c)]; it did not address the question of who was l
entitled to demand a hearing." Id. at 1035, citing Local 282, IBT, l
supra, at 801.
Similarly, the U.S. Court of Appeals for the Fifth Circuit, in holding that the charging party has a right to contest a proposed settlement of a complaint, first considered whether 5 5 of the APA or the NLRA mandated such a conclusion. Concrete Materials of Georgia, Inc. v. NLRB, supra, at 64-66. The court concluded that a hearing requirement would have to (Continued) e W
. A close reading of these decisions indicates, however, that with the exception of the Court of Appeals for the Third Circuit, the courts did not base their findings of a right to completion of a hearing on the Administra-tive Procedure Act (5 U.S.C. 9 551 g seo., or "APA").
The case law established by the NLRB decisions is summarized below.
It is reasonably clear that a proceeding may be terminated prior to the hearing if there are no disputed issues of material fact. While the law is less clear, the better legal view would seem to be that a proceeding can also be teminated during or after the hearing provided there are no disputed issues of material fact. Thus, for example, a proceeding may be terminated during the hearing if there appear to be no disputed issues of material fact as would be the case if, for example, the parties withdraw or settle the case.
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E/ (Continued) be based on the NLRA.
Id. at 66. Similarly, the U.S. Court of Appeals for the D.C. Circuit retied on the language of the NLRA to resolve the issue of hearing requirements after a complaint is issued.
I.L.G. Un.,
Etc. v. NLRB, supra, at 828-31. That court specifically avoided deciding whether the APA applied to the issue.
Id. at 831, n. 27.
Similarly, t
the U.S. Courts of Appeal for the SeventE and Ninth Circuits resolved the issue of hearing requirements on the basis of their interpretation of the NLRA, without even referring to the APA. See, Oshkosh Truck Corp.
- v. NLRB, supra and NLRB v. IBOEW. Local U. 357, supra.
. However, the law is unclear whether or not NRC may teminate or dismiss a proceeding where disputed issues of material fact remain. Minneapolis and Brandenfels indicate that a party is entitled to a decision on the record on dispute' factual issues if the hearing has been completed.
If the hearing has progressed to final stages, and the investment in time and effort by the parties has been substantial, the rule in Minneapolis and Brandenfels might also be applied.
If the hearing has not progressed beyond the early stages, the NRC's power to dismiss or terminate the proceeding may depend on 'the role of party intervenors. The NLRB decisions by the courts for the First, Third, Fifth, and Ninth Circuits all suggest that a proceeding may not be dismissed in early stages if there are disputed issues of material fact. The NLRB dect-
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sions of the courts for the D.C., Second, and Seventh Circuits suggest to the contrary. The earlier opinion by the Court of Appeals for the D.C.
Circuit denying hearing rights before the NLRB is not characteristic of that court's more contemporary views on hearing rights and intervention, and its later opinion focusing in part on the lack of any disputed issues of material l
l fact may point the way toward a modification of the earlier holding. The opinions of the courts for the Second and Seventh Circuits denying hearing rights are premised upon the belief that the policy of the NLRA requires the NLRB to balance the possible merits of a charging party's case against the l
merits of industrial hamony and the advantages of speedy concessions asso-ciated with a settlement. The factors considered by these courts seem not f
to be directly relevant in an NRC context, although it is possible that some l
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public interest in avoiding costly and protracted proceedings would be taken into account. The NLRB itself takes a strong view that since it only regu-lates through the issuance of complaints, where it must react to the claims of disputing parties, it must have broad discretion to settle cases in order to effectively allocate its resources. This rationale would have some application to NRC, but would likely be given less weight given the fact that NRC, unlike NLRB, has licensing authority ar1 a continuing regulatory responsibility over all of the entitities it regulates.
It is also possible that the NLRB cases could all be distinguished on the ground that while a complaining party may have some hearing rights, the situation would be different if the proceeding were initiated solely at the initiative of the agency. The TMI-l proceeding was of course initiated by the Commission, and not by intervenors' request.
The applicability of the NLRB cases to NRC proceedings would turn on the relevancy of the NLRB cases to the NRC proceedir.; being studied.
In other words, the analysis must be made on a case-by-case basis and, if the reasoning of the courts in the NLRB cases seen appropriate, then NRC pro-ceedings might be treated similarly.
It is necessary then to compare the relevant portions of the Act and the NLRA to determine whether the referenced U.S. Courts of Appeal cases are applicable to the instant proceeding. As discussed earlier, the Act does not require a hearing prior to the lifting of a license suspension. Nor are there any provisions of the Act or the Commission's regulations which provide guidance on how such a discretionary hearing, if held, should be conducted.
The NLRA, by contrast, specifically provides for the hearings ruled on by W
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e e.
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. the referenced courts, and describes the role of the NLRB and its General Counsel in initiating the hearings. 29 U.S.C. I 153(d); see also, I.L.G.W.U, Etc. v NLRB, supra, at 829.
The fact that the NLRA contemplates that a charging party may file its charges, be made a party to a hearing, may press objections to a proposed settlement, and may intervene in or initiate court review of Board decisions, led the U.S. Court of Appeals for the First Circuit to conclude that the charging party has some hearing rights. M. No similar rights are afforded members of the public in the Atomic Energy Act specifically for hearings held to consider whether to lift license suspensions. Further, as indicated above, the NLRB may not initiate proceedings itself, but receives complaints issued by its General Counsel, who in turn initiates the process after receiving a charge of an unfair labor practice from a member of the public.
H. As such, the NLRB is constituted to adjudicate matters before it in a manner different from most other administrative agencies. See, Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 268 (1940). As a i
result, the charging party in an unfair labor practice proceeding " possesses I
a unique legal status." NLRB v. 011. Chemical and Atomic Workers Int. Un.,
l supra, at 1036.
The NRC, by contrast has broad authority to initiate proceedings on its own and to take unilateral action, without waiting for a member of the public to press a charge to initiate a proceeding or to trigger some other Inderd, the Commission must have such authority, it may be NRC action.
e aqued, in order to carry out its mandate to protect the public health and safety. See, Siegel v. AEC, 400 F.2d 778 (D.C. Cir.1968).
l l
t
. In sun, the Staff believes that, although a majority of the courts have required hearings to run their course once a complaint procedure is initiated under the NLRA, the NLRA is sufficiently different from the Atomic Energy Act with respect to the authority given to the respective administrative bodies, that the NLRB court decisions are not necessarily binding on the NRC.
Turning to the instant proceeding, as discussed above, the licensee has licensing rights regarding TMI-1 which were summarily suspended, and there exists a strong legal argument in favor of restoring those rights, without a prior heering, once the Commission can make safety findings that the facility can restart and operate safely. No similar rights were suspended or even involved in the NLRB cases.
In the absence of controlling precedent, the Staff believes that a legally permissible conclusion is that the APA does not require the comple-tion of a hearing such as the TMI-1 restart proceeding prior to taking administrative action, even though such a hearing has been voluntarily initiated by the Commission.10/ A logical extension of this conclusion is that the APA would not preclude the NRC from taking a lesser measure such as i
l
---18/ This conclusion must be made in light of the fact that the facility is located within the Third Circuit, which has the court that most strongly reads the APA as providing hearing rights once a discretionary hearing is initiated. See Marine Engineers, supra. However, that holding involving the NERX,is perhaps tempered by the same court's decision in Westinghouse Electric Corp. v. NRC, 598 F.2d 759 (3rd Cir.
1979), where it found acceptable the NRC's decision to indefinitely suspend licensing hearings for reprocessing plants for a period of time.
Y
. to resolve the issue of interim operation of TMI-1 while the hearing is pending. Such action would presumably fall within tha broad discretionary authority which the NRC possesses.lE/
B.
LEGAL CONCLUSION r
The NRC has broad discretion to carry out its administrative responsi-bilities.
Included in this authority is the ability to lif t license suspen-sions without offering a prior public hearing. Although a closer cuestion is presented as to the ability of the NRC to lif t a suspens' ion after a discretionary hearing is still pending for the purpose of considering the restart of the facility, the Staff concludes, in the absence of legal prece-dent directly prohibiting such action, or, indeed, precedent which casts substantial doubt in this regard. that the NRC may do so provided that the NRC sets forth an adequate basis for the decision.
19,/ The NRC is unique in the degree of broad responsibility reposed in it I
and the Congress has bestowed broad discretion upon the Commission.
See, Siecel v. Atomic Eneroy Commission, 400 F.2d 778, 783 (D.C. Cir.
1308); People of the State of Illinois v. Nuclear Regulatory Commission, 591 F.2d 12,16 (7th Cir.1979); Public Serv. Co. v. Nuclear Regulatory i
Commission, 582 F.2d 77, 82 (1st Ctr.19/8); and Porter county chapter v.
Nuclear Regulatory Commission, 606 F.2d 1363,1369 (D.C. Cir.1979). This broad responsibility and broad discretion gives the Commission flexi-bility to adjust its decisionmaking process.
See, Union of Concerned I
Scientists v. Atomic Energy Commission, 499 F.2H 1069 (D.C. Cir.1974);
and Westinghouse Elec. Corp. v. United States, 598 F.2d 759 (3rd Cir.
1979).
O
. III. TECHNICAL EVALUATION OF RESTART CONSIDERATIONS Since issuance of the August 8, 1979 Order, the Staff has recommended and the Commission has approved items to be required for near tem operating licenses (NT0Ls) and operating reactors as described in NUREG-0694 and NUREG-0737, Eaclosure 2 of which incorporated the items in NUREG-0694. The Staff position is that the requirements for restart of TMI-1 should contain all of the items required for NT0Ls. We believe that these requirements are appro-priate considering that the TMI-1 restart involves basically the same manage-ment and technical staff, same technical qualifications and training, same procedures, and same basic reactor design as that which existed at TMI-2 at the time of the accident.
In addition, although the effect is not specifically definable, the TMI-1 reactor is located at the same site and therefore in the same environment as the TMI-2 accident. These requirements were justified and identified to the Board and all parties in responding to Board Question No. 2b and subsequently further delineated to the licensee by [[letter::05000320/LER-1980-049-01, /01L-0:on 801027,ASME Code Stamped UV Valve LTB-V171 Discovered Stamped by Unauthorized Valve Supply House.Caused by Unauthorized Use of ASME UV Code Stamp by North American Safety Valve Industries,Inc|letter dated November 25, 1980]] from D. G. Eisenhut, NRC, to R. C. Arncid, Met-Ed. These items constitute additional requirements beyond those specifically identified in the Commission Orders related to restart considered necessary by the Staff to provide reasonable assurance that TMI-1 can be safely operated.
In summary, the Staff position with respect to restart requirements for TMI-1 is as follows:
1)
All short-tem items identified in the August 9,1979 and March 6,1980 Order.
I 20/ "NRC Staff Testimony of Denwood F. Ross, Jr., Relative to the Suffi-ciency of the Proposed Additional Requirements (Board Question 2),"
submitted to the ASLB on October 31, 1980.
. 2)
Those NUREG-0737 items identified in the [[letter::05000320/LER-1980-049-01, /01L-0:on 801027,ASME Code Stamped UV Valve LTB-V171 Discovered Stamped by Unauthorized Valve Supply House.Caused by Unauthorized Use of ASME UV Code Stamp by North American Safety Valve Industries,Inc|letter dated November 25, 1980]].
3)
Meeting new emergency planning rule as identified in letter dated April 28, 1980 from R. W. Reid, NRC to J. G. Herbein, Pet. Ed.
As a result of the review of the status of TMI-1 by the ACRS at its 248th meeting on December 4-6, 1980, the ACRS made recommendations concerning TMI-1. These recommendations are under review by the Staff.
With regard to actual implementation of the requirements identified above, a preliminary review indicates that many administrative items, such as management changes, emergency procedure revisions, training and manning improvements, have been accomplished. Many plant modifications, however, have not yet been implemented.
In fact, some of these modifications are in the engineering design stage and modifications not yet started. Discussions with the licensee and with on-site NRC staff personnel indicate that at least i
four to six months would be required to complete these modifications, followed by a two to three-month period of testing. Conformance with a number of recent I&E Bulletins which are not TMI-2 accident related restart require-ments may also bear o., the timing of restart of TMI-1. Up to six months is estimated to complete work on these items. Schedule information available from the licensee tends to confinn the above estimates ir. that restart is scheduled for September 1981.
On January 6,1981, the staff requested the Department of Energy to 1
l provide information regarding reliability of power to assess the potential regional impact in the event that TMI-1 is not restarted in six, twelve, or 1
eighteen additional months. This information will be supplied to the-Commission upon receipt.
1
t IV. CONCLUSION In conclusion, the Staff has considered GPU's proposal to the Commission that it permit restart of the TMI-1 facility upon,a detennination by the Director of NRR, with the approval of the Commission, that the bases for 1
i making the suspension orders immediately effective have been satisfactorily A
l resolved. The Staff concludes that the better interpretation of the law is that the Commission has the legal authority to take the action proposed by i
GPU, provided that the appropriate findings could be made., Further, the Staff interposes no legal or technical objection to pennitting operation of
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TMI-1 once (1) the Director of Nuclear Reactor Regulation is satisfied that e:
the Licensee has implemented the required items (which the Staff considers necessary and sufficient to provide reasonable assurance that TMI-1 can be safely operated) and (2) the Commission has agreed. Notwithstanding this 1 '
conclusion, the Staff believes that the issue of whether the public interest l
considerations referred to by the Commission in its Orders are better served I
by permitting operation of the facility prior to completion of the hearing, is best left to the Commission for resolution.
t Respectfully submitted, 1
bn,uS/ c/ hv w-Daniel T. Swanson Counsel for NRC Staff Dated at Bethesda, Maryland this 6th day of January,1981.
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u v
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
METROPOLITAN EDISON CQiPANY, ET AL.
)
Docket No. 50-289
)
(Three Mile Island Nuclear Station,
)
Unit 1)
)
D CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO GENERAL PUBLIC UTILITIES LETTER DATED DECEMBER 1,1980" in the above-captioned proceed-
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ing have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 6th day of January,1981:
Samuel J. Chilk (12)*
Honorable Mark Cohen Secretary of the Commission 512 E-3 Main Capital Building U.S. Nuclear Regulatory Commission Harrisburg, PA 17120 Washington, DC 20555 Walter W. Cohen, Consumer Advocate Leonard Bickwit, General Counsel
- Department of Justice U.S. Nuclear Regulatory Commission Strawberry Square, 14th Floor Washington, DC 20555 Harrisburg, PA 17127 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 Gerni ~
- i Dr. Walter H. Jordan Bureau of Radic.:on Protection j'
881 W. Outer Drive Dept. of Envir;nmental Resources Oak Ridge, TN 37830 P.O. Box 2063 l:
Harrisburg, PA 17120 I
Dr. Linda W. Little 5000 Hermitage Drive Mr. Marvin I. Lewis Raleigh, NC 27612 6504 Bradford Terrace Philadelphia, PA 19149 George F. Trowbridge, Esq.
l Shaw, Pittman, Potts & Trowbridge Metropolitan Edison Company 1800 M Street, N.W.
ATTN:
J.G. Herbein, Vice Pres.
Washington, DC 20006 P.O. 60x J42 Rea'.i M. 9A 19603 l
Karin W. Carter, Esq.
505 Executive House 33. b;e L'ae P.O. Box 2357 1%0
., Box 3521 Harrisburg, PA 17120 Etters, PA 17319 i
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-- Ms. Gail P. Bradford John Levin. Esq.
ANGRY PA Public Utilities Commission 245 West Philadelphia Street Box 3265 York, PA 17401 Harrisburg, PA 17120 John E. Minnich, Chaiman 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 Environmental Coalition on 1725 I Street, N.W; Nuclear Power Suite 506 433 Orlando Avenue Washington, DC 20006 State College, PA 16801 Thomas J. Gemine Ms. Frieda Berryhill, Chaiman Deputy Attorney General Coalition for Nuclear Power Plant Division of Law - Room 316 Postponement 1100 Raymond Boulevard 2610 Grendon Drive Newark, NJ 07102 Wilmington, DE 19808 Atomic Safety and Licensing Board Ms. Marjorie M. Aamodt Panel
- R.D. #5 U.S. Nuclear Regulatory Commission Coatesville, PA 19320 Washington, DC 20555 i
Scritor Allen R. Carter, Chaiman Atomic Safety and Licensing Appeal 1.r Joint Legislative Committee on Panel (5)*
f_
U.S. Nuclear Regulatory Commission I
Energy Washington, DC 20555 Post Office Box 142 Suite 513 Senate Gressette Building Docketing and Service Section (7)*
Columbia, SC 29202 Office of the Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 i
l bcv>t5/-5 i
Daniel T. Swanson Counsel for NRC Staff l
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