ML20010J330
| ML20010J330 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 09/24/1981 |
| From: | Bradford L THREE MILE ISLAND ALERT |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8109300326 | |
| Download: ML20010J330 (4) | |
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UNITED STATES OF AMERICA 4
NUCLEAR REGULATORY 00bMISSION 1
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Secetsi BEFORE THE COtMISSION Y2 In the Matter of
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METROPOLITAN EDISON COMPANY Docket No. 50-289 Sh
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(Restart)
(s (Three Mile Island
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5, hg Station, Unit 1)
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j %g TMIA'S RESPONSE TO NRC CONENIS ON DNEDIATE EFFECTIVENESS WITH ECT 10 f
LICENSIP FARD DECISION ON MANAGEMEtTr COMPEIENCE/0PERATOR TRAD
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In its Septanber 11, 1981 coaments on the irraediate effectiveness issues, the Staff assunes that the Comission wants the parties views on whether the Comission should consider lifting the inmediate effectiveness provisions of its July 2,1979 Order and its August 9,1979 Order,10 NRC 141, regarding license suspension. Page 5.
This is despite language in the Camission's August 20, 1981 Order, CLI-81-19, specifically requesting parties to file cmments with the Caumission on whether the partial initial decision on managenent conpetence should l
be made immdintely effective.
Cauments subnitted by other parties to the
.c ggy sproceeding seen to indicate that no one else is acting under the Staff's Ml$$w:a5hll@Ni$kmever,dMr.A recognizes a possible amB%.ty.'aiidEhld a s
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sane' guidance from the Caumission as to whether the immdinte, effectiveness issue before it concerns the August 9, 1979 Order, ot' the partial initial decisi~on on l
l management competence.
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In any. event, TMIA believes this is a distinctfon wit.hout a difference.
The reasons outlined in its request for stay and supporting memorandtra are relevant in either case. Under the August 9,1981 Order, the Cmmission may lift J/ gd 3 8107300326 810924' n
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the imnediate effectiveness of the license suspension only if the public health safety or interest no longer require it.
Similarly, under 10 CFR 52.764, the Cocaission must stay the effectiveness of a decision if it detennines that it is in the public interest to do so.
It is this criteria which 'IMIA considered in its initial ccuments on innediate effectiveness and concluded that the
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public interest would net be served by restart. or, as the Staff may wish to characterize it, by lifting the license suspcnsion, on the basis of the partial initial decision.
Since the two criteria are practically identical, DfIA submits that its cmments are just as relevant if analyzed under the Staff's assunptions. The Cmmission must conclude that its original concerns on managment capabilities as specified in its August 9,1979 and March 6,1980 Order, CLI-80-5, have not been satisfied.
The Staff also argues that the license suspension prescribed under the July 2,1979 and August 9,1979 Orders was so extraordinary a ranedy that the agency should or must sm marily lift the suspension and restore the original rights under the license when the situation changes. First, 'IMIA subnits that the circu:nstances warranting the suspension have not changed and that the inadequate partial initial decision on which DiIA has already ccmnented can not validly support a conclusion that it has.
Second, however, 'IMIA believes that the ' Staff's argtznent is inapplicable under the facts of this case. The
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two catss cited in footnote 9 of the Staff's comnents are not on point. Northwest
@ g Airlin+es Inc. v. -CAB,' 539 F.2d 74S(D.C. Cir.1976) concerned the FAA's b
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imposition of a tanporary route change under unusual circu:nstances without granting opposing parties tha opportunity to present their c'3jections at an evidentiary hearing as was the normal required procedure. The Court concluded that because-tiv egency's action was taken without a hearing, the tanporary suspension could be implenented only until a hearing could be hcid. Similarly, in ICC v. Oregon Pacific Industries, Inc., 420 US 134(1975), Justice Powell's concurring opinion
I i specifically noted that the agency in that case disregarded nonnal procedure i
1 by taking action without notice and hearing. In other words, both cases concerned extraordinary agency actions taken without opportunity for tid parties to raise objections at a hearing and because of clear due process problems, the Courts held that such actionswere to be extremently limited.
In contrast, however, Licensee in this case was afforded a full evidentiary hearing.
Further, it is well established that due process does not requa.re a hearing before an administrative determination becomes effective, particularly where the public's health and safety is involved, as long as an opportunity to be heard is eventually afforded.
Bowles v. Willingham, 321 US 503, 520 (1944),
Anderson National -Bank v. Luckett, 321 US 233, 247 (1944), Moore Ice Cream Co.
- v. Rose, 289 US 373 (1933), Phillips v. Comnissioner of Internal Revenue, 283 US 589, 597 (1931). Thus, the Staff can not properly argue that the license suspension was an extraordinary rmedy merely because the Comission's
. action was taken prior to the hearing. Therefore, the Staff is incorrect to imply that the Cntminsion should impose less of a burden on the Licensee to satisfy the Cocmission's management concern, or greater presumtion in favor of the validity of the partial initial decision, on the basis that Licensee's rights have been violated by virtue of this license suspension and hearing process.
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g The Staff also argues that 10 CFR 52 764 does not apply to this proceeding, hNg, +,although recomims. that.the Comission may wish to use the criteria as an aid
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iry ;h.N58ddiAAMkMiA e ' effectiveness. TMIA subnits that while this particular g
t proceeding may not fall within the Staff's definition of operating licmse proceedings,10 CFR $2.764(f), where an ambiguity exists, it should be resolved to effect the spirit, purpose, and intent of the Commission.
In this case, the Cannission has consistently used the public health, safety, and l
interest as a crucial standard in evaluating actions taken in this case. Therefore, since the Comission has expressed no intent to the contrary, we believe the
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- dhe public interest criteria set out in 10 CFR 52.764 should be considered by the Camussion in also evaluatirg the inmediate effectiveness issue in this case.
Finally, the Staff arip.tes that the Board's partial initial decision is without substantive effect since the Board can not authorize an action to be taken. (This is despite language in the August 9, 1979 Order and August 20, 1981 Order referring to the Board's possible authorization of restart). The Staff concludes that the Board's decision should be made inmerHately effective since it is merely a recomnendation. We fail to see the significance of this distinction since clearly the partial initial decision will provide the bases for any restart decision. TMIA subnits that the Camission should consider the partial initial decision as having the force and effect of authorizing restart and that it should attach more importance to its potential implications than the Staff sems to.
In strn, the Staff's cmments raise no new isssues of substance which TMIA nust address.
For the reasons stated in its September 11, 1981 request for stay and memorandtra in support,7MIA maintains that the Cor: mission must find it in the public interest to stay the inmediate effectiveness of the partial
!L initial decision.
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Respectfully submitted, An4 #
mmt Louise Bradford September 24, 1981 PIIA l
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