ML19351F407

Response Opposing Util Dec 1980 Request for Commission Reconsideration of 790702 & 0809 Orders.Ltr Was Late & Lacked Factual Support for Assertions.Certificate of Svc Encl

ML19351F407
Person / Time
Site:	Three Mile Island
Issue date:	01/06/1981
From:	Weiss E SCHIFF, HARDIN & WAITE, UNION OF CONCERNED SCIENTISTS
To:	NRC COMMISSION (OCM)
References
NUDOCS 8101120537
Download: ML19351F407 (8)

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G' UNION OF CONCERNED SCIENTISTS RESPONSE TO LICENSEE's REQUEST FOR RECONSIDERATION By letter dated December, 1980, the Metropolitan Edison Company (" Met. Ed.") has requested the Commission to reconsider its orders of July 2, 1979 and August'9, 1979, which effectively suspended the operating license for TMI-l pending public hearings and Commission review of whether the measures preposed by the NRC staff are necessary and sufficient.to permit the plant to resume operation. The Met. Ed. letter'is remarkable both for l its extraordinary lateness and for the almost total lack i

of factual support offered for the self-serving assertions contained therein. These fall into three general cate-gories: (1) assertions that resolution of the issues before the Licensing Board'is being delayed by the ineptness a and/or malevolence of parties other than Met. Ed. -- i.e.

the NRC staff'and the intervenors, (2) assertions that.

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developments since the entry of the Orders have somehow removed the basis for the Commission's original decisions, and (3) assertirne that it has been unfairly burdened by .

having to litigate issues prior to restart which are common to all B&W reactors.

As to the first category Met. Ed. fails to offer even one example of an issue where the action of any Intervenor has unnecessarily delayed the course of this proceeding. On the contrary, the only party to this proceeding which even attempted to make use of the NRC's summary deposition rule is the Union of Concerned Scientists. The only issues mentioned as to which the Staff's alleged failure to have expeditiously developed specific criteria is claimed to have harmed the licensee -- management competence and fin ncial t

qualifications -- are TMI-related issues that are unique to i Met. Ed. and which were specifically included by the Com-mission within the questions which must be resolved prior to restart. Thus, none of Met. Ed.'s various rationales for l

relief applies to these questions; they are neither common to all B&W reactors nor do they result from a vague or unbounded Commission order.

Met. Ed. has offered no reason whatever for the Commis-cion to reconsider its original view that these issues or any other admitted in contention in this proceeding, are directly and significantly related to the safe. operation of TMI-1. It apparently expects the Commission to rescind its

! Orders on the ground that more time has gone by than l

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originally contemplated to resolve these issues. As no showing is even attempted that the plant is safe to operate, or that the Commission's original concerns have been addressed on _

i this basis, it would be an abuse of discretion for the Commission to reverse its orders, even if the law would otherwise permit it.

i Met. Ed. offers nothing beyond the bald assertion that developments since the entry of the TMIl Orders have pro-duced " unjust" consequences or those inconsistent with the public interest. Even as to the one aspect of the situation which could arguably be said to be re".ated to.the amount of time involved in the hearing process and thus colorably "new" grounds for reconsideration -- the economic impact of

, shutdown -- not one piece of specific information is pro-vided with respect to the cost of the shutdown or even when TMI-l would be prepared to resulae operation even if granted permission. Many restart requirements are not yet imple-mented at TMI-1. It is at least possible that the permission for restart is sought more as a basis for a request to state authorities to re-establish TMI-l in Met. Ed.'s rate base than as a reflection of the plant's readiness to resume operation. This Commission should not permit its processes or the parties to this case to be used for such purposes.

Met. Ed. asserts that_the Kemeny, Rogovin and other reports have demonstrated that "the principal.cause of the accident and its severity was the failure to integrate and disseminate knowledge gained from the Davis Besse investi-

gation and other reports." This is an extraordinary selec-tive interpretaticn of the findings of these investigations.

It will be remembered by this Commission that the Kemeny ,

investigation concluded that-the primary and pervasive failure of the NRC which led to the accident was an attitude problem, a complacency within the NRC and the industry which led it to disregard warning signs, to consign known un-resolved safety issues to regulatory oblivion and to become preoccupied with expeditious licensing. The action requested

by Met. Ed. is an invitation to return to that attitude.

It should also be noted that the relief requested by the licensee is completely at odds with the basis upon which the relief is requested. That is, while complaining of the

, Staff's alleged inability to resolve issues because of the purported lack of criteria, it asks the Commission to give the Staff the authority, without Commission review, to permit restart of the plant. If the Staff has not shown

itself competent to resolve TMI-l related safety issues, it is surely not the appropriate body to authorize restart.

Moreover, it is UCS's view that S189a of the Atomic Energy Act requires this hearing prior to restart. As i

conceded by the NRC Staff, the action taken by the Commis-sion on July 2, 1979, was a suspension of the operating license for TMI-1. (Memorandum from Howard K. Shapar, Executive Legal Director to the Commissioners,. July 25, 1979,

Enclosure:

"NRC Staff Reply to Licensee's Answer.to Commission Order Dated July 2, 1979, p. 1) The Staff

i further concedes that S189a of the Atomic Energy Act would compel a hearing upon the request of an interested person.

Id. In our view, the recent decision in Sholly v. NRC, No. ~

80-1691, et. al. (D.C. Cir. November 19, 1980) requires that hearing to be held prior to the lifting of the sus-pension. Slip. op. at 23-24.

Finally, we note the extreme lateness of this motion, which does little more than reiterate arguments previously considered and rejected by this Commission prior to the issuance of the August 1980, Order, particularly with respect to the alleged " unfairness" of treating Met. Ed.

differently than other B&W owners. According to the Commission's rules, the time for filing such a motion expired 10 days after the orders were issued. 10 CFR S2.711. Some newly-discovered and genuinely compelling raason for waiving that time limit should be required be:.. ore the Commission even considers this request, in view of the fact that the licensee has waited 16 months, allowed the parties to heavily invest scarce resources in these pro-ceedings and permitted the hearings themselves to proceed l for two months. No such compelling reason is remotely suggested in Met. Ed.'s papers.

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For these reasons, we urge the Commission to reject the request.

Respectfully submit'ted, .

l . 0- d / wu 4 fl Ellyn R. Weiss Harmon &. Weiss f'

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1725 I Street, H.W.

Suite 506 Washington, D.C. 20006 (202) 833-9070 General Counsel for Union of Concerned Scientists Dated: January 6, 1980 l'

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rs CERTIFICATE OF SE'RVICE it I hereby certify that copies of the " Union of Concerned 2

Scientists Responso to Licensee's Request for Reconsideration," ,

have been mailed postage pre-paid this 6th day of January, Ae 1981, to the following parties:

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t. J Mr. Steven C. Sholly .

G3 Secretary of the Commission (21) h3 U.S. Nuclear Regulatory Commission 304 South Market Street sb Mechanicsburg, PA 17055 20555 lh g4 Washington, D.C.

Attn: Chief, Docketing & Service e'< ) Section M James A. Tourtellotte, Esq. (4) Jordan D. Cunningham, Esq.

Office of the Exec. Legal Director Fox, Farr & Cunningham

$1 U.S. Nuclear Regulatory Commission 2320 North Second Street ft(j Washington, D.C. 20555 Harrisburg, PA 17110 M

$Ub Frieda Berryhill Karin W. Carter, Esquire Coalition for Nuclear Power Qj Assistaat Attorney General

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505 Executive IIouse 2610 Grendon Drive b P.O. Box 2357 . Wilmington, Delaware 19808 hj Harrisburg, PA 17120 f

% Walter W. Cohen, Consumer Adt Daniel M. Pell Department of Justice jrg: 32 South Beaver Street Strawberry Square, 14th Floos York, Pennsylvania 17401 17127 1 liarrisburg, PA j

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Robert L. Knupp, Esquire Chauncey Kopford l Assistant Solicitor Judith H. Johnsrud County of Dauphin Environmental Coalition on

.P.O. Box P Nuclear Power i' 407 North Front Street 433 Orlando Avenue Harrisburg, PA 17108 State College, PA 16801 ..

! John A. Levin, Esquire Robert Q. Pollard Assistant Counsel Chesapeake Energy Alliance Pennsylvania Public Utility 609 Montpelier Street Commission Baltimore, Maryland 21218

, Harrisburg, PA 17120 Theodore Adler <* Marvin I. Lewis Widoff, Reager, Selkowitz 6504 Bradford Terrace

& Adler Philadelphia, PA 19149 3552 Old Gettyrburg Road Camp Hill, PA 17011

- Ms. Marjorie Aamodt Ivan W. Smith, Chairman RD #5 Atomic Safety & Licensing Board Coatesville, PA 19320 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Walter H. Jordan Dr. Linda W. Little 881 W. Outer Drive 5000 Herraltage Drive Oak Ridge, Tennessee 37830 Raleigh, North Carolina 27612 George F. Trowbridge, Esquire Ms. Jane Lee Shaw, Pittman, Potts & R.D. 63, Box 3521

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4 Robert W. Adler Dept. of Environmental Resources 1 505 Executive House '

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