ML20002B358

Requests Mod of NRC 790702 & 0809 Orders Re TMI-1 Shutdown. Bases for Making Suspension Orders Have Been Satisfactorily Resolved

ML20002B358
Person / Time
Site:	Three Mile Island
Issue date:	12/01/1980
From:	Dieckamp H GENERAL PUBLIC UTILITIES CORP.
To:	Ahearne J NRC COMMISSION (OCM)
Shared Package
ML20002B356	List: ML20002B355 ML20002B358
References
NUDOCS 8012110417
Download: ML20002B358 (11)

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' M December 1, 1980 The Hon. John F. Ahearne, Chairman Nuclear Regulatory Commission Washington, D. C. 20555

Dear Mr. Chairman:

It is the purpose of this letter to request that the Com-mission reconsider and modify its Orders of July 2, 1979 and August 9, 1979 dealing with the restart of Three Mile Island Unit No. 1 ("TMI-1"). We believe that an evaluation of developments since the entry of such Orders demonstrates that they have pro-duced consequences which are unjust and inconsistent with the public interest. The discussions at the Commission's public meetings prior to the entry of the August 9, 197,9 Order and.the terms of that Order manifested a clear expectation by the Commission that the hearings required by that Order would have been completed by February and that a Commission decision on the matter of lifting the suspension of TMI-l's operating a'uthority could be reached by September of this year. Yet the fact is that the hearings did not even begin until mid-October 1980. The consequence of those orders, has been to severely penalize the four million residents of our service areas and our hundreds of thousands of investors. Unless the Commissien takes action to expedite matters, authorization for operation of TMI-l will be further delayed for many more months.

We are addressing this request for re-consideration and modification of your July 2 and August 9, 1979 Orders to the Commission, rather than to the Atomic Safety and Licensing Board (ASLB), since it is the Commission (and not the ASLB) that can determine whether, in the light of all the pertinent considera-tions, such orders should be modified.

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December 1, 1980 l BACKGROUND AND 3 ASIS FOR THE ORDERS There is no legal requirement that the Commission employ the formal procedures which it has ordered prior to authorizing TMI-l restart. Section 189a of the Atomic Energy Act does not preclude continued operation of a nuclear unit while the Commis-sien has under consideration the matter of suspension or amend-ment of the operating license. The Commission is today proceeding on that basis with respect to other nuclear units. Prior to the adoption by the Commission of its August 9, 1979 order, we sug-gested that a discretionary (not mandated by the Act) public hearing could be held before restart is authorised and that the formal proceedings under Section 189a cou'i be initiated and go forward as a wholly separate matter and be completed after restart.

In a Lemoranden dated July 26, 1979, your legal staff pointed out the clear distinction between (1) a hearing on an order to suspend or revoke a license, which is governed by Sec-tion 189a of the Atomic Energy Act, and (2) a hearing as an aid o

to ena'le tF Commission to reach a decision as to whethe. re- .

start coulc be permitted, to which no statutory requirements are applicable. Your legal staff pointed out in that memorandum that, while the first type of hearing requires a full adjudi-

. catory hearing, "the Atomic Energy Act does not require the hear-i ing to be held prior to restart" (Emphasis in original)'. That memorandum pointed out that, with respect to the second type of hearing:

"No statutory requirements are applicable to any such hearing. Since the plants could be restarted in the absence of any hearing l

whatsoever, it wou1C appear to follow that if a hearing of Ki t nature were prescribed, no recuirementt. 3rre those of fairness, l

would be ace.!.3 y ,753Y." (Emphasis added) l l

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December 1, 1980 Our efforts in July 1979 to persuade the Commission to adopt procedures that would permit the TMI-l issues to be addressed within a reasonable time frame were unsuccessful.

Instead the Commission chose to treat TMI-l differently than all othe. effected plants and ordered a full adjudicatory hearing with a further requirement for specific approval by the Commis-sion itself prior to restart. The Commission did not cive an adequate explanation of its discriminatory action nor is there any record that it considered the strong public interests to be served by procedures for TMI-l which were less time-consuming.

The Commission's Order, dated August 9, 1979, stated (at pages 3-5) that the bases for the conclusion (in the Commission's July 2, 1979 Order) that the Commission presently lacks requi-site reasonable assurance that the Licensee's Three Mile Island Unit No. 1 facility can be operated without endangering the ,

health and safety of the public" were:

1. "The NRC staf f has ascertained that B&W designed reactors appear to be unusually sensitive to certain off-normal transient conditions originat-ing in the secondary system. . ....

This, in turn, places a large burden on the plant operators in the event of off-normal system behavior during such anticipated tiansients."

The Commission's statement is applicable to all B&W reac-tors and, notwithstanding this statement, the Commission has permitted ull B&W units with operating licenses (other than TMI) to operate. Numerous reviews and studies have not resulted in any determination that B&W reactors cannot be operated safely.

TMI-l is not unique in this regard.

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2. "As a result of a preliminary review of the TMI-2 accident chronology, the NRC staff initially identified several human errors that occurred during the accident and contributed significantly to its severity."

1 There is no question that, with the benefit of hindsight, some of the actions taken by the TMI-2 operators were proved to have been inappropriare. But there is no question, also, that the actions taken by them were responsive to their training which reflected the perception by B&W and NRC of plant behavior during a loss of coolant accident. Both the Kemeny and the Rogovin reports clearly identify the critical linkage between presumed system behavior and operator action. Indeed prior experiences revealed that under circumstances such as those which occurred at TMI-2, operators were likely to inappropriately terminate high pressure injection when faced with high pressurizer level, but this finding by the NRC and B&W was not communicated by the NRC or B&W to the TMI-2 operators. The Kemeny and Rogovin reports point out that the TMI operators had superior qualifications in terms of background and experience and above-average scores in NRC qualifying examinations. To the extent that the August 9, 1979 order is predicated on the actions taken by the individual TMI-2 operators, it is not well-grounded since the Kemeny, Rogovin and other reports have since_ demonstrated that the principal cause of the accident and its severity was the failure to integrate and disseminate knowledge gained from the Davis-Besse investigation and other reports.

3. "In addition to the items identified for the other B&W reactors, the unique circumstances at TMI require i that additional safety concerns identified by the NRC staf f be resolved prior to restart. These concerns result from (1) potential interaction between Unit 1 and the l

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December 1, 1980 damaged Unit 2, (2) questions about the management capabilities and tech-nical resources of Metropolitan Edison, including the impact of the Unit 2 accident on these, (3) the potential effect of operations neces-sary to decontaminate the Unit 2 fa-cility on Unit 1, and (4) recognized deficiencies in emergency plans and station operating procedures."

Even a year ago, it appeared probable that the Consission had overgeneralized its concerns as identified with TMI and that it had expressed such concerns in a way which would inc itably provide occasions for delay. In the light of the experience gained over the period since the entry of that Order, it is clear that this has been the situation. For example, in the Safety Evaluation Report ( SER) , ( NU REG-0680 ) , the staff refers to areas in which it regards existing s'andards as " inadequate" or where

" formal acceptance standards" do not exist, and for which "new acceptance criteria have been or are being developed." What this means in reality is that we are confronted with undefinable schedules which result from attempting to comply with non-exist-ent or changing criteria. At the same time, the staff is inter-preting the July 2 and August 9, 1979 Orders as requiring a complete demonstration to the Licensing Board as to just how the requirements will be met, even though the staff admits that some

requirements have not been adequately defined and that it expects to impose additional requirements beyond those listed in the Orders, which have not been defined. Presumably, these require-ments will be imposed on at least all B&W plant licensees when i ultimately defined and are not unique to TMI. The matter is l further aggravated by the tendency of the staff to require full compliance with the long term actions, (NUREGS 660 and 0737), as

{ contrasted with the requirement of the Order for reasonable l

progress. These difficulties have been particularly manifested l in connection with the issues of management capability for which l

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6- December 1, 1990 criteria are in a continuing state of development and of e=ergency planning where the interface with FEMA is still in the process of definition. As a result, the staff is many months behind schedule in preparation for the hearings before the TMI-l ASLB. The issue of financial qualifications also lacks clear criteria, however compliance with the staffing and system modification requirements will constitute the best measure of adequacy of financial resources.

RESPONSIBILITY FOR THE DELAYS Let us make clear that we are not criticising the TMI-l ASLB for the delay. On the contrary, we believe that the Board has struggled valiantly to deal, in a timely manner, with the ill-defined assignment gi ve.. 7 it by the Ccamission. The delays are attributable primarily to the following:

(a) The Commission's orders defining the issues to be considered prior to restart, open up to relitiga-tion many of the NRC's licensing criteria applied not only to TMI-l but to all operating power reactors. As a result, our customers and investors have been made easy prey for those seeking to exploit all opportunities for delay; (b) The Commission's staff has not given the priority to this matter which the orders clearly contemplated; indeed, the staff has candidly admitted that this is the case.

( c) Some of the issues involve items for which the Com=ission either has not yet established criteria or for which it is unwilling to apply existing criteria; the result is that there are items for which there are no established standards against which our performance or that of other licensees can be measured;

December 1, 1980 (d) Even where there are purported standards, the staff interpretations frequently change and, with changes in staff personnel, these problems have been magnified.

(e) There is a staff tendency to reach out and require compliance before restart with actions identified for the future.

It -ay well be that the internal structure within the Com-mission, and the impediments to communications to the Commission from its staff and licensing boards, are such that the Commission is not adequately informed that the priority that it assigned to the TMI-l restart proceeding has been altered. More than two months ago, the Chairman of the ASLB for the TMI-l restart proceeding expressed concern on that score and stated (Prehearing Conference page 2436):

"I think that the Commission has to be made aware that the staff has allocated its prior-ities inconsistent with the schedule it first adopted, and inconsistent with the schedule that we thought we had some understanding on."

The follow-up September 17 Memorandum and Order of the ASLB states:

"There have been substantial delays in this proceeding. In November 1979 the NRC staff predicted that its Safety Evaluation Report (SER) would issue in January 1980. Tr. 553.

The SER, served June 16, 1980, remains incom-plete in several large and essential areas:

management capability and resources, financial qualifications, lessons learned Category A Items, and emergency planning. It is there-fore not possible to schedule an evidentiary hearing on those issues."

"This latest failure by the staff to meet its schedule predictions has once again raised the board's concern that the Commission should be informed that the expeditious hearing antici-pated in the August 9, 1979 Order and Notice of Hearing (10 NRC 141, 147) will not be realized."

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"When it became 1771 rent from the staff's report  ;

on August 13 that the staff would not soon be )

ready to proceed to hearing on management, finan-  ;

cial, and emergency planning issues, the board, in very emphatic terms, advised the staff that the Commission is not receiving the information it deserves in this case, and that the Commis-sion has a right to be informed that the pro-ceeding is threatened with further delay. As far as the board can determine, the staff has made no such report to the Commission."

The recent report of the Subcommittee on Nuclear Regulation of the Senate Committee on the Environment and Public Works and the Senate action on the' Commission's fiscal 1981 authoriration bill have urged that the Commission expedite the restart of TMI-l to the extent consistent with protection of the public health and safety. In his Report "Three Mile Island: The Financial Fallout" (EMD-80-89, July 7, 1980), the Comptroller General stated:

"NRC has treated Met-Ed's restart program differently from other utilities with Babcock and Wilcox reactors. We do not question their judgment in setting dif-ferent requiremen,ts and procedures, given the situation at TMI. However, we believe that the uniqueness of the situation that led to the differing requirements should also engender different procedures for expediting the corrective actions needed and the return of the unit to service.

Performance criteria that are lacking either for restarting TMI-l or cleaning up TMI-2 should be expeditiously fur-nished and timely decisions on company compliance with the requirements should be made. While full recognition of the

, public's right to participate in the l decision making process should be giv.en, the hearing process should be conducted so that it is as ecuitable to the uti..ities as it is to the public."

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w December 1, 1980 Ue respectfully suggest that the Commission should recog-nice that its actions in delaying the restart of TMI-l adversely impact the cost of electric energy to the four million residents of our service area (and the economy of that area) and conflict with National policies relating to foreign oil imports. Such delays also increase the cost and reduce the financial resources available to us to deal with the clean-up of TMI-2. The Orders of the PaPUC and NJSPU sum =arized in Section C7 of the SER

( NU REG-0680 ) made clear, as of that date, the interrelationship between authori=ation by the Commission of restart of TMI-l and our financial ability to continue with priority items.

The various reports and orders to which we have previously referred have demonstrated that one of the major problems in dealing with the aftermath of the TMI-2 accident is what the Comptroller General's report, dated July 7, 1980 (EMD-80-89) has characterized (at p.60) as the "present fragmented roles and responsibilities of the various Federal and State regulatory agencies". It also referred to the need to bring those roles and responsibilities together into'a unified approach towards re-solving the problems created by the accident. Action by the Commission in connection with TMI-l restart is central to achiev-ing that objective and accounts for the Comptroller General's recommendation that (at p.62) l . . .NRC move as quickly as possible, i

while taking all necessary steps to protect the public health and safety, to consider and act on the question of restarting TMI-1."

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RECOMMENDED ACTION What we are urging, in substance, is that the Commission r

re-examine the matter in the light of the developments in the past months since the July 2 and August 9, 1979 Orders were

10 - December 1, 1980 entered and thtt it recognise that the public interest is not served by prolon7 1 ng for many additional months the more than 16 months of forced shut-down which have already occurred since the July 2, 1979 Order.

Specifically we propose that the Commission follow a course consistent with its treatment of other B&W reactor plants by lifting the immediate effectiveness of its July 2 and August 9, 1979 Orders upon a determination by the Director of Nuclear Reactor Regulation (NRR), with the approval of the Commission, that the bases for making the suspension orders immediately effective have been satisfactorily resolved.

Such a determination would, of course, include a determi-nation that TMI-l has taken all of the actions required of other S&W reactors as a condition for resumption of operation following the shut-down orders issued to these reactors in the Spring of 1979. The determination would, in addition, encompass those con-cerns peculiar to TMI-l listed in the Commission's August 9 Order as bases for the immediately ef fective suspension of TMI-l's operating authority. The determination should be based on those criteria that are now in effect and/or apply to all other operating reactors. Further, we would expect the determination by the Director, NRR, to include compliance by TMI-l with those

" lessons learned" actions required by the Commission to have been implemented by other B&W plants at the time of TMI-l restart.

Determinations by the Director of Nuclear Reactor Regulation on the above matters would not remove such matters from the issues to be considered in the hearing before the ASLB and would not preclude the ASLB from recommending modification of those determinations based on the hearing record. The Director's determinations would serve solely as a basis for lifting the immediate effectiveness of the July 2 and August 9, 1979 Orders.

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December 1, 1980 We do not propose that the TMI-l hearing now in progress before the ASLB be cancelled. We anticipate, instead, that the hearing would proceed along its present course with (1) the pre-sentation of evidence on all of the substantive issues enumerated in the Commission's August 9, 1979 Order, (2) the filing of proposed findings, (3) the issuance of a decision by the ASLB recommending the continuation, suspension or modification of TMI-l's operating license, and (4) the Commission's review and final action on the ASLB's recommended decision.

We do not suggest that the Commission should compromise public health and safety at TMI-l or at any other nuclear reac-tor. However, we believe that National and regional interests are being needlessly sacrificed by the continued delay in developing and applying appropriate procedures for expeditious authorization of TMI-l restart and that the Commission has the authority and responsibility to bring that sacrifice to an end.

Respectfully,

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H. Dieckamp .,

cc: Governor Brendan T. Byrne Governor Richard Thornburgh George H. Barbour, Pres. NJBPU Susan M. Shanaman, Chmn. PaPUC Commissioner Peter A. Bradford Commissioner Victor Gilinsky Commissioner Joseph M. Hendrie bec: R. C. Arnold E. L. Blakev/

P. Clark

W. G. Kuhns J. B. Liberman G. F. Trowbridge E. G. Wallace Info. copies

W. J. Dircks, NRC H. Denton, NRC Dr. B. Snyder,NRC l

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