ML20005B937
| ML20005B937 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 09/14/1981 |
| From: | Smith I Atomic Safety and Licensing Board Panel |
| To: | METROPOLITAN EDISON CO., NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD), THREE MILE ISLAND ALERT |
| References | |
| NUDOCS 8109160150 | |
| Download: ML20005B937 (8) | |
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Bd 9/14/81 UNITED STATES OF AMERICA ed NUCLEAR REGULATORY COMMISSION ff q,
DOCKEFED ATOMIC SAFETY AND LICENSING BOARD Opr usN m SF.P14 G M ' Z Before Administrative Judges:
I' van W. Smitn, Chairman
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Office cf tM secretary Dr. Walter H. Jordan occutirg & service Dr. Linda W. Little Bruch g
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In the Matter of
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8ERVED SEP
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1 4 1981 METROPOLITAN EDISON COMPANY )
Cocket No. ES-289
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(Three Mile Island Nuclear )
(Restart)
Station, Unit 1)
)
September 14, 1981 MEMORANDUM AND ORDtR RE0PENING RECORD ON MATTERS [
RELATED TO CHEATING, APPOINTING A SPECIAL ASSISTA AND SCHEDULING A CONFERENCE OF THE PARTIES /.
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g In resp'onse to our Order of August 20, 1981 trie mission of views on the investigation of cheating, no party has.taken the position that the record need not be reopened.
See Order of August 20, 1981, at.3.-1/ In addition, no party has opposed the appointment of Judge Milhollin pursuant to 10 CFR 2.722(a).
In view of the above, and the desirability of promptly issuing this order, we do not pause long to discuss the legal basis for reopening the record as applied to the facts of this case.
We agree with the intervening 1/
As of this writing, we have received and considered the responses of Newberry, dated August 28; and Licensee, ANGRY and TMIA, all dated September 8.
The Staff's interim response of September 8 does not oppose the appointment of Judge Milhollin pursuant to 10 CFR 2.722(a).
We are informed by telephone that Mrs. Aamodt has filed a response which supports reopening the record and does not oppose the appoint-ment of Judge Milhollin.
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parties that the record must be reopened.
As predicted by the Licensee, and in the absence of arguments to the contrary, we would have done so sua sponte even without requests to reopen by the parties.-2/We note that this is not the same as a reopening of the record after an initial decision since we explicitly kept open in our decision the matter of the possible impact on our findings of an inquiry into cheating-related matters.
Accordingly, and because we would have reopened the record sua sponte, I
the testi; for reopening the record at the behest of parties after a board decision on the matter are not fully applicable.
Carolina Power and Light Co. (Shearon Harris, Units 1, 2, 3, and 4),
t BP-78-2, 7 NRC 83, 84-85 (1978).
It is sufficient at this stage to note our preliminary view that the allegations of multiple ' cheating offenses and ~
bases for those allegations in the NRC Staff reports and other information filed before us, as summarized in our Order of August 20 and the Partial Initial Decision (PID), at paragraphs 43-45, present significant relevant i
new information which could (depending upon the facts developed in the reopened proceeding) alter our findings and conclusions as set forth in the PID.
Paragraph'45; notes 18, 19, 21, 22-24, all in Section II.C, Traiai.ng.
In addition to the potential need to change our findings, the PID expressly left open any conclusion with respect to operator testing and licensing.
Paragraph 584(c), note 63.
2]
We disagree strongly with the position of Newberry, expressed in its letter of August 28, that it is sufficient to simply require a reex-amination of the operators who took the suspect examinations.
I l
Appointment of Judge Milhollin In the absence of objection, and as contemplated by our Order of August 24, 1981, pursuant to 10 CFR 2.722, the Board appoints Judge Gary L.
Milhollin to assist it as a Special Master, technical interrogator and informal assistant.
As stated in Section 2.722(a)(2), appeals from evidentiary rulings by the Special Master under Sections 2.743 and 2.757 may be taken to the Board in accordance with procedures which shall be established in this Order of appointment.
In the context of evidentiary rulings by Judge Milhollin pur-suant to Section 2.722(a)(2), the Board views the relationship of it to the Special Master as being analogous, in general, to the role of an appeal board with respect to interlocutory evidentiary rulings by a licensing board in a standard NRC proceeding.
There will be no right to appeal an evidentiary ruling by the Master to the Board prior to the issuance of the Master's report upon completion of all (or perhaps significant phases thereof) of the evidentiary record.
At the time of issuance of the Master's report, we will establish an opportunity for parties to offer their comments on the Master's advisory report to the Board.
Parties may seek discretionary review by us of a significant evidentiary ruling by the Master under the guidelines applicable to requests for directed
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certification to an appeal board pursuant to 10 CFR 2.718(i).- How-ever, we establish the rule in this proceeding that it shall be a prereq-uisite to a request to us for directed certification that the Master has first been requested to certify the question or refer the ruling to us pur-suant to 10 CFR 2.718(i) or 2.730(f), and has had an opportunity either on the record or in writing to rule on the request.
Conference of Parties A bifurcated conference of parties is hereby scheduled for Friday, October 2,1981, at 9:00 a.m. at the First Floor Hearing Room, Northwest Office Building, Capital and Forster Streets, Harrisburg, Pennsylvania.
3/
As recently set forth by the Appeal Board in South Carolina Electric and Gas Co (Summer, Unit 1), Unpublished Memorandum, August 27, 1981, at pages 3-4, those guidelines are:
"[T]he grant of a request for directed certification is an exception to the Commission' general rule against interlocutory appeals (10 CFR 2.730(f)) and, as such, is to be resorted to only in ' exceptional circumstances'".
Consumers Power Co.
(Midland Plant, Units 1 and 2),. ALAB-382, 5 NRC 603, 606 (1977),
citing 'Public Service Co. of New Hampshire (Seabrook Station, Units l and 2), ALAB-27), 1 NRC 478, 455 T1975).
Thus, "[a]lmost without exception in recent times, we have undertaken discre-tionary interlocutorf review only where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner".
Public Service Co. of Indiana (Marble Hill Nuclear Generating 5tation, Units 1 and 2), ALAB-405, 5 NRC 1190,1192 (1977).
[ Footnote omitted]
n
y If necessary, the conference will continue on Saturday, October 3.
All parties who wish. to participate in the reopened proceeding shall attend the conference and be prepared tc discuss the matters outlined below.
The first phase of the conference will be presided over by the Board for the purpose of determining the issues to be heard in the reopened pro-ceeding under the general issue of the effect of the information on cheat-ing on the issues considered or left open in the PID.
Parties shall be prepared to suggest refined issues and examples of matters which should be inquired into under each issue.
Some' issues and examples of evidentiary matters thereunder have already been suggested in the filings of the parties.
The Board expects to be able to rule on the issues in the pro-ceeding, including examples of evidentiary matters which as a minimum
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should be explored under some of the issues, after a short recess during the conference. O ach party shall be prepared te discuss the E
contribution it will make to the record on any issue which it contends should be included.
The participating parties are directed to confer in advance and serve a joint written list of both agreed-upon and proposed but disagreed-upon issues (and examples of evidentiary matters thereunder).
This joint' list shal.1 be served so that it is received by Judge Smith by September 24, 1981.
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The Licensee has requested relief from the Commission from the NRC Staff's plans to reexamine Licensee's operators.
Unless and until the Commission directs otherwise, the Board deems the necessity and sufficiency of the Staff's plans to conduct a reexaminationto be with-in the scope of the reopened proceeding.
d Immediately following the conference before the Board, Judge Milhollin will preside over a conference of the parties to discuss:
(1)
Consolidation.
Parties shall be prepared to suggest appropriate forms of consolidation, such as designation of a lead intervenor for each of the major issues.
(2)
Discovery.
The parties shall describe the discovery which they require.
It is probable that the procedure for discovery shall be modified in 'the reopened procee'ing.
The Board encourages the parties to begin im-
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d mediately to engage in informal discovery.
The parties should be prepared to discuss devices for greatly shortening the time normally required for discovery.
An example is having the parties meet for the simultaneous ex-change of discovery requests informally, with the opportunity for an im-mediate ruling on the validity of any refusal.
(3)
Evidentiary Hearina.
The parties shall be prepared to ' discuss dates for the close of discovery, the further refinement and identification of evidentiary matters, the filing of written testimony and any other prehearing matters such as trial plan outlines and cross-examination plans, and the beginning of the evidentiary hearing.
(4)
Confidentiality.
In this Order below the Board is requesting'the Licensee and NRC Staff to supply certain information.
If any party wishes l
to argue that this information should be held confidential, that party must i
j submit its argument in writing as set forth below.
The parties should be f
prepared also to argue the question of confidentiality at the conference l
j before the Master.
I
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Further Information The Board directs the Staff to serve in this proceeding by September 18, 1981 the following:
(1)
Unexpurgated copies of all previously filed Board notifications, including the OIA Report, the IE Report, and the views of the IE investi-gators.
(2) to the IE Report which was deleted, denoted (at p.
- 51) as: GPU file material re investigation of incident concerning [ deleted]
and [ deleted]/various dates.
(3)
Seating diagrams of each test session of the April 21-24, 1981 NRC examinations (a total of 8 since each session had smoking and non--
smoking rooms), designating by name where each examinee sat, the principal location of the proctor, and approximate room dimensions and seating dis-tances.
In addition, as to each session, a listing of the proctor and relief or assistant proctors, the approxima+e times each was in~ each room, and the approximate times there was no proctor in each room.
Include an identification of any other person in addition to examinees and proctors, who were present in an ex.nination room during the examination.
The Staff may wish to con'fer with the Licensee to assure that the information required by this item 3 is accurate and complete.
Any disagreements or uncertainties in the information may be noted.
Service of the above shall be accomplished in a manner to assure receipt of the information by the Board and Judge Milhollin by September 21, 1981.
Four copies should be provided to Judge Smith.
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If any party believes any of the above Saformation is subject to confidentiality, the information shall nevertheless be served on the Board i
and Judge Milhollin on the above schedule, but may be either withheld from or disclosed to the parties under interim negotiated protective arrangements pending the Board's further ruling.
All such confidentiality arguments must be srpported by a written ' ief filed in such a fashion so as.to be received by the Board, Judge Milhollin and the parties by September 25, 1981.
Parties who wish to oppose any claims of confidentiality shall file written answers received no later than tNa October 2, 1981 conference.
(It would be h'elpful if any such responses could be delivered to the Board on the afternoon of October 1 at the Holiday Inn, 2nd and Chestnut Streets, Harrisburg).
j FOR THE ATOMIC SAFETY AND LICENSING BOARD y-a/W#
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, Chairman
,sd Ivan W. Smith i
ADMINISTRATIVE JUDGE Bethesda, Maryland September 14, 1981.
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c UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
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METROPOLITAN EDISON COMPANY
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Docket No. 50-289 (Three Mile Island Nuclear (Restart)
Station, Unit No. 1)
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CERTIFICATE OF SERVICE I hereoy certify that I have today served copies of the Atomic Safety and Licensing Board's MEMORANDUM AND ORDER REOPENING RECORD ON MATTERS RELATED TO CHEATING, APPOINTING A SPECIAL ASSISTANT, AND SCHEDULING A CONFERENCE OF THE PARTIES, dated September 14, 1981, by regular first class mail, except as' marked (*)',
which indicates that service was by express mail.
Advance copies were telecopied to the NRC Staff and Licensee at 5:00 p.m. on September 11, 1981 because of the accelerated demands upon those two parties required by this Order.
hc fu w r Doris M. Moran Clerk to the Atomic Safety and.Liceasing Board Bethesd'a, Maryland September 14,'1981
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MAILING LIST 4
George F. Trowbridge, Esq.
M. John E. Minnich, Chairman Shaw, Pittman, Potts & Trowbridge Dauphin County Board of Commissioners 1800 M Street, N. W.
Dauphin County Courthouse Washington, D. C.
200~
Front and Market Streets Harrisburg, Pennsylvania 17:01 Counsel for NRC Staff Office of Executive Legal Director Mr. Marvin I. Lewis U. S. Nuciear Regulatory Commission 6504 Bradford Terrace Washington, D. C.
20555 Philadelphia, Pennsylvania 19149
- Ms. Marjorie M. Aamodt
- Jordan D. Cunningham, Esq.
R.D.5.
2320 North Secnnd Street Coatesville, Pennsylvania 19320 Harrisburg, Pennsylvania 17110
'-4 Ms 'Gail B. Phelps William S. Jordan,' II.I, Esq.
Anti-Nuclear Group Representing Harmon & Weiss York (ANGRY) 1725 Eye Street, N. W., Suite 506 245 West Philadelphia Street.
Washington, D.'C.
20006 York, Pennsylvania 17404 John A. Levin, Esq.
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Mr. Robert Q. Pollard Assistant Counsel 609 Montpelier Street Pennsylvania Public Utility Commission Baltimore, Maryland 21218 P. O. Box 3265 Harrisburg,.Penn.sylvania.i7120 Robert W. Adler, Esq.
Assistant Attorney General
- Ms. Louise Bradford 505 Executive House TMI Alert,.Inc.
I P. O. Box 2357 315 Peffer Street
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Harrisburg, Pennsylvania 17120 Harrisbu'rg, Pennsylvania 17102 Walter W. Cohen, Esq.
Thomas J. Germine, Esq.
Censumer Advocate Deputy Attorney General Department of Justice Divis'icn of Law - Room 316 1425 Strawberry Square 1100 Raymond Boulevard Harrisburg, Pennsylvania 17127 Newark, New Jersey 07102 l
Ellyn R. Weiss, Esq.
Harmon & Weiss 1725 Eye Street, N. W., Suite 506 Washington, D. C.
20006 Mr. Steven C. Sholly Union of Concerned Scientistr 1725 Eye Street, N. W., Suite 601 Washington, D. C.
20006 Dr. Judith H. Johnsrud Dr. Chauncey Kepford Environmental Coalition on Nuclear Power 433 Orlando Avenue State College, Pennsylvania 16801 m