ML20031B377
| ML20031B377 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 09/28/1981 |
| From: | Swanson D NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8110010307 | |
| Download: ML20031B377 (30) | |
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UNITED STATES OF AMERICA NUCLEAP REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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METROPOLITAN EDIS0N COMPANY, ET AL.
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Docket No. 50-289 Restart (Three Mile Island, Unit 1)
NRC STAFF REPLY TO COMMENTS ON IMMEDIATE EFFECTIVENESS WITH RESPECT TO LICENSING BOARD DECISION ON
_ MANAGEMENT COMPETENCE /0PERATOR TRAINING N
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Daniel T. Swanson
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Counsel for NRC Staff
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Cartifica By t/iYO
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9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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METROPOLITAN EDIS0N COMPANY, ET AL.
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Docket No. 50-289
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Restart (Three Mile Island, Unit 1)
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NRC STAFF REPLY TO COMMENTS ON IMMEDIATE EFFECTIVENESS WITH RESPECT TO LICENSING BOARD DECISION ON MANAGEMENT COMPETENCE /0PERATOR TRAINING 9
Daniel T. Swanson Counsel for NRC Staff l
SEPTEMBER 28, 1981 1
TABLE OF CONTENTS Page
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t I.
INTRODUCTION.........................
1 l
l II.
DISCUSSION o 3
A.
Legal Standard re. Ir:raediate Effectiveness........
3 I
l B.
Consideration of Bases Fct Imposing License Suspension In Lignt of Intervenor Cancerns.......
11 III.
CONCLUSION.........................
22 t
e O
1 O
TABLE OF CITATIONS Page JUDICIAL PROCEEDINGS ICC v. Cregon Pacific Industries, Inc., 420 U.S. 184 (1975)...... 4 Friends of the Earth, l' c. v. U.S., 600 F.2d 753
( 9 th Ci r. 19 7 9 )............................
6 Northwest Airlines v. CAB, 539 F.2d 748 (D.C. Cir.1973) 4 NUCLEAR REGULATCRY PROCEEDINGS Consumers Power Co (Midland Plar;t, Units 1 and 2),
CLI-73-38, 6 AEC 1082 (1973) 4, 5, 12 Metropolitan Edison Co. (Three Mile Island, Unit 1):
Docket No. 50-289 (Comission's July 2, 1979 Order) 2, 6 CLI-79-8, 10 NRC 141 (1979) (August 9, 1979 Order) 2,3,4,6,7, 8, 10, 11, 19 CLI-80-5, 11 NRC 408 (1980) (March 6, 1980 0rder) 11 CLI-81-3, 13 NRC (1981) (March 23, 1980 Order) 11 l-CLI-81-19, 14 NRC (198;i (August 20, 1931 Order) 1,2,7,8,9 LBP, 14 I!PC (Au 27,1981)
(PartiaTTnitial Decision) gust
.................. Passim Docket 50-289 (ASLB Memorandum and Order dated September 19,1981) 2 Public Service Co. of Indiana (Marble Hill Nuclear Nuclear Generating Station, Units 1 and 2), CLI-80-10, 11 NRC 438 (1980).........................
4
l
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l Page Sacramento Municipal Utility District (Rancho Seco l
Nuclear Generating Station), CLI-79-7, 9 NRC 680
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(1979) 6, 21, 2 2 l
Toledo Edison Co. et al. (Davis-Besse, Unit 1),
Docket No. 50-346, Order dated July 6, 1979...........
6 STATUTES 5 U.S.C. 9 558, 5 9(b) of Administrative Procedure Act (APA)............................
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42 U.S.C. 5 2231, 9 181 of Atomic Energy Act, As Amended (AEA) 3 49 U.S.C. 6 559.......
4 REGULATIONS 10 CFR 9 2.764 2, 7, 8, 9, 22 10 CFR 6 2.785 8
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STAFF 09/28/81 UNITED STATES OF fMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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METROPOLITAN EDISON COMPANY, ET AL.
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Docket No. 50-289
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Restart (Three Mile Island, Unit 1)
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HRC STAFF REPLY TO COMMENTS ON IMMEDIATE FFFECTIVENESS WITH RESPECT TO LICENSING BOARD DECISION ON MANAGEMENT COMPETENCE /0PERATOR TRAINING I.
INTRODUCTION In its August 20, 1981 Order, the Commission requested the parties' com-ments on whether the Licensing Board's Partial Initial Decision on Procedural Background and Management Issues (PID) should be made immediately effective.M The PID, msequently issued on August 27, resolved management competence issues in a manner favorable to the eventi:al operation of Unit 1 with the exception of a sub-issue on operator license examination on wh'ch the Licens-ing Board reserved pending further consideration in a reopened hearing.U l
Three parties, in addition to the NRC Staff, submitted their comments on the question of immediate effectiveness. The Licensee's September 11, 1981 com-ments supported making the PID immediately effective but did not address the question of what regulatory standards should apply to the question.
TMIA E CLI-81-19, 14 NRC (1981).
a U etropolitan Edison Co. (Three Mile Island, Unit 1), LBP, 14 NRC M
_ (1981) (Partial Initial Decision en Procedural Background and Management Issues).
Ig also commented on September 11, 1981 arguing that the PID should not be imme-diately effective and regtested a stay pending review of the PID. TMIA's coments assume that the appropriate legal standard governing the immediste effectiveness nuestion is 10 CFR 9 2.764 and consequently that a stay request pursusnt to that regulation of the immediate effectiveness of the PID is required to insure that appellate review is conducted before restart is per-mitted. The Aamodts in a letter to the Commission dated September 10, 1981 oppose immediate effectiveness of the PID, arguing that the PID is flawed.
The Aamodts do not indicate what the appropriat. legsl standard should be regarding the consideration of immediate effectiveness in this proceeding.
y The fiRC Staff's position as set 'rth in its September 11, 1981 comments is that the PID should be treated as immediately effective and that the Com-r mission should review the question of whether the bases for its July 2,1979 h'
and August 9,1979 enfor.ement orders requiring the immeaiate suspension of the TMi-1 licease continue to retain their validity.
Subsequent to the submittal of comments by the parties, the Licensing l
Board issued " Memorandum And Order Reopening Record on Matters Related to I
Cheating, Appointing a Special Assistant, and Scheduling a Conference or the Parties," dated September 19, 1981 (Board Memorandum and Order).
Citing the portions of its PID on which it had reserved decision, the Board indicated that the allegations of multiple cheating offenses and bases for those alle-rj gat present significant relevant new information which could, depending on the facts developed in the reopened proceedings, alter the Board's findings and conclusions as set forth in its PID. Accordingly, the Board reopened the record to consider the cheating allegations and any impact that the matters
_ may have on the Board's previously express?d findings as well ac to Gevelop a record to enable the Board to reach findings on the as yet unresolved issue of operator testing and licensing. Board Memorandum and Order at 2.
Pursuant to the Commission's August 20 Order, the Staff has reviewed the comments filed on the immediate effectiveness question and is replying to them herein.5/ It is the Staff position that it is appropriate for the Commission to conduct its immediate effectiveness review on management competence issues other than those specifically reserved by the Licensir.g Board in the PID.
4 II.
DISCUSSION A.
Legal Standard re. Immediate Effectiveness
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The Commission's Order of August 9, 1979 justified immediate suspension of the TMI-1 license because the public health, safety and interest required such an action irrespective of the equities or injuries to the Licensee.
This action was taken pursuant to the Atomic Energy Act of 1954 as amended, and the Commission rules and regulations in 10 CFR (August 9,1979 Urder, p.8).
Section 181 of the Atomic Energy Act makes the provisions of the Admin-istrative Procedure Act (APA) (5 USC 9 551 et, seq.) applicable to NRC actions.
Section 9(b) of the APA provides specific limitations on what enforcement action an agency can take with respect to licensees.
Since the current restart proceeding is by the very terms of the August 9,1979 Order i
S/ or a more detailed discussion of the history of the proceeding, see F
the "NRC Staff Comments on Immediate Effectiveness With Respect to Licensing Board Decisit o on Management Competence / Operator Training" dated September 11, 1981 (Staff Comments).
l a proceeding to determine whether or not the suspension of the previously existing license should be terminated, / it is an enforcement proceeding to which 9 9(b) of the APA applies.N It is therefore appropriate to examine the effect of this statute on the instant proceeding.
Section 9(b) of the APA requires an agency to give a licensee an oppo'tunity to change its conduct before its license can be suspended Or c
revoked, unless, inter alia, the public health,.nterest or safety requires otherwise. Thus, when a situation occurs where immediate suspension or revocatica of a license is necessary in the public interest, an agency may do so regardless of the equities or injuries to the licensee.
For example, ir, the case of an accident involving aircraft, the Administrator of Civil Aercr,actics may suspend the license of a pilot pending investigation.N However, the ordering of an immediate suspension of license, without opportunity for a prior hearing, is an extraordinary remedy which is justi-fied only so long as the facts supporting that action exist. When the situation changes, the agency should samarily, and arguably must, lift the suspension and restore the original rights under the license.-/
Commission case law is consistent with this legal principle.
For exam-ple, in the Midland proceeding, the Director of Regulation issued an order 4/ CLI-79-8, 10 NRC 141, 149 (1979).
I 5./ See, e.g., Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), CL1-80-10, 11 NRC 438, 442 (1980), where the Commission referred to the August 9, 1979 Order as an enforcement order.
N 49 USC 559.
I 7/ See Northwest Airlines v. CAB, 539 F.2d 748 (D.C. Cir.1978); See also, l
ICC v. Oregon Pacific Industries Inc., 420 U.S.184 (1975) (concurring opinion of Justice Powell).
imediately suspending certain construculon which the utilit.y had been engaged in pursuant to a construction permit that it had received from the AEC. Consumers Power Co. (Midland Plant, Units 1 and 2), CLI-73-38, 6 AEC 1082 (1S M). After an inspection of the facility, the Director issued s second order which modified the prior order, perrritting some construction of the facility. Thk order was followed by a request from a member of the public to have the full provisions of the first order reinstated.
In its 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 Comission concluded that the Director had discretion to modify the suspension order prior to the conduct of a hearing where subsequent develorments warrant lifting the suspension.
_I_d. at 1083.
If such action were not allowed, it would create o situation where the Director might well be reluctant to issue summary orders, knowing that they must remain unchanged and in effect for substantial periods of time, regardless of changed circumstances.
I d_.
Such discretionary authority to lift the suspension of a license without holding a prier hearing lies with the Comission as well.
Mort:over, the courts upheld the Commission's lifting of the immediate suspensicn order for Rancho Seco, following the accident at TMI-2, without affording a prior hearing.
In that proceeding, the Commission's earlier order suspending the operating license for Rancho Seco, because of similari-ties bemen that facility and TMI-2, also provided an opportunity for members of the public to request a hearing on the aspects of the order. Notwithstanding the fact that two petitions were received requesting hearings, questioning r
whether hncho Seco could be s4fety operated, the Comission lif ted the imediate suspension of the license while permitting the hearing to continue, concluding that prior hearings were not compelled by law.
Sacramento Munic-1 pal Utility District (Rancho Seco Nuclear Generating Station), CLI-79-7, 9 I4RC 680 (1979). This dction was chaliccged in the U.S. Court of Appeals, Where the Comission action was found not to 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).E Consequently, if the Commission, on the basis of the Licensing Board's PID and subsequent decisions on the restart issues, is able to find that its original concerns regarding the operation of TMI-1 have been satisfied, then its basis for finding that the public health, safety or interest require imme-diate effectiveness of the shutdown provisions of the July 2 and August 9, 1979 Orders similarly disappears.
In such a situation, the Commission arguably must lift the immediate effectiveness of the TMI-1 license suspension.
The procedural outline provided by the Commission in its August 9,1979 Order is consistent with the legal principles set forth above.
In its August 9,1979 Order, the Commission instructed that, if the Board presiding over the restart proceeding issued a decision recommending restart of THI-1 and if the Staff certified that the Licensee had completed all the necessary actions, it would issue an order deciding whether the provision of the U The Corcission acted similarly with respect to Davis-Besse, Unit 1, where it lifted the suspens'.,o.f the license despite the existence of an outstanding request for hearing. Toledo Edisor. Co., et al. (Davis-Besse, Unit 1), Docket No. 50-346, Order dated July 6,1979.
l l
l August 9,1979 Order requiring the Licensee to remain shutdown would remain immediately effective.
In its August 9, 1979 Order, the Commission stated it would ' issue an order lifting immediate effectiveness if it determines thdt the public health, safety or interest no longer require immediate effectiveness."
10 NRC 141, 149 (1979).
The Staff thus submits that the Commission's August 20, 1981 Order must be considered fn the context of the August 9, 1979 Order; that is, whether the public health, safety c-interest still require immediate effectiveness of the THI-1 license suspension in light of the issuance of the PID.
As indicated above, other than the Staff, TMIA was the only party sub-mitting comments to the Commission which defined a legal standard against which it provided its immediate effectiveness argument. TMIA assumed that the applicable standard for consideration of immediate effectiveness of the PID was 10 CFR 9 2.764, without discussing why they chose that particular regulation. The balance of TMIA's Memo in effect raises exceptions to the PID, as well as argument in support of the exceptions, in an attgmpt to substantiate their argument that, under a balancing of 9 2.764 considerations.
the PID should be stayed. However, as indicated earlier in its Staff Com-ments,10 CFR 9 2.764 is not the appropriate criteria to apply in this pro-ceeding.
As the Staff indicated in Staff Comments, the immediate effectiveness concept can apply to both licensing and enforcement matters.U The immediate effectiveness rule for licensing decisions is set forth in 9 2.764 of the E See " Staff Comments," supra, at 3-9.
Commission's Rules of Practice. However, immediate effectiveness as it applies to the lifting of a previously imposed license suspension is a separate matter on which the regulations are silent. General guidance as to the latter can be found in the case law as discussed above.
As a result.
there is understandable confusion surrounding the correct standard to apply in considering the immediate effectiveness issue in this proceeding.
For example, under the framework established for licensing proceedings, after the issuance of an initial decision authorizing the issuance of an operating license, the Appeal Board conducts the review of the merits of
+he initial decision persuant to 6 2.7ob, just as the Commission in its 4 3ust 20, 1981 Order has delegated to the Appeal Board the task of presid-ing over the appellate review of the merits of the PID in this proceeding.
In this regard, the Commission would determine whether to stay the effective-ness of the initial decision authorizing the issuance of an operating license based, at most, on "brief c.oments" provided by the parties to the proceeding on the immediate effectiveness issues, separate from the review on the merits by the Appeal Board (6 2.764(f)(2)(iii) and (vi). Similarly, the Commission's determination in the instant proceeding of the imediate effectiveness issue "shall not affect its (now the Appeal Board's] direct appellate review of the merits of the Board's decision." CLI-79-8, supra, at 149. The time period within which the Comission would resolve the imediate effectiveness issue under 6 2.764 (30 days) and the TMI-1 proceeding (35 days) is similar.E E ee, 10 rFR b 2.764(f)(2)(iv) and CLI-81-19, supra, slip op, at 3.
S y
7 Finally, as is indicated infra, at note 27, even if the standard of 6 2.764 were applied to this proceeding, the outcome would be the same.
Nevertheless, section 2.764 of the Comission's Rules of Practice explains when "an initial decision directing the issuance or amendment of a construction permit, a construction authorization, or an operating license
becomes innediately effective.
10 CFR 9 2.764(a). The restart proceeding, as discussed above, is an enforcement proweding, and would not cause the issuance of a new operating license. Thus, s 2.764 does not apply.
In this regard, the concerns raised by the Aamodts and THIA in their submittals miss the mark, for they merely raise substantive issues about the merits of the findings and conclusions contained in the PID. They do not address the question of whether the Board's PID, which authorizes nothing but merely recommends conclusions for issues, should immediately be subject to Commission review "to give the Commission as much time as possible to revied [the PIDj..." and to permit the Commission to understand the bases for the Board's conclusions so that if it so elects, it can " monitor the IE investigation in the context of its relevance to this proceeding." PID at 27.
Presumably, by beginning its review now, instead of much later this fall after the balance of the Board's decision is issued, the Commission would be that much farther ahead in it; review of the issues in this proceeding.
- See, CLI-81-19, supra, at 1.
For example, if t'ne Commission, as part of its review of the PID, and pending the receipt of the balance of the Board's initial decision, were to determine that some of the Intervenors' concerns were significant in terms of the basis for license suspension, then it could take appropriate action immediately, such as the issuance of an order requiring action on the part of the Staff or Licensee, rather than waiting two or more months when the last of the Board's decisions, including that concerning the cheating incident, is issued.
Accordingly, the Staff perceives no reason why the PID should not be made immediately effective to allow Commission review of the continuing validity of its suspension order. This recommendation is of course made with the caveat that the Board withheld its conclusion on the subissue of operator license examinations (PID at 337, Para. 585), and reserved tha right to reconsider and, if necessary, alter its findings and conclusions, depending on the facts developed in the reopened hearing, on other broad issues of the Licensee's management integrity, the quality of its operating personnel, its ability to staff the facility adequately, its training and testing program, and the NRC process by which the operators would be tested and licensed.
PID at 27. Nevertheless, the Staff agrees with the Board's conclusion that the issues resolved by the PID, which may or may not be altered by the Board, are favorable to the eventucl operation of TMI-1.
Pid at 337, Para. 585. The Staff submits that these issues are approriate for immediate Commission review.
The critical question for the Commission's consideration, should it make the PID immediately effective, is whether the resolution of the issues in the PID removes the "public health, safety or interest" concerns which form the basis for the immediate effectiveness of the THI-1 license suspension.
August 9, 1979 Order, supra at 15 (10 NRC at 149). We now turn to these con-siderations in light of the concerns raised by the Intervenors.
B.
Consideration of Bases For Imposing 1.icense Suspension In Light of Intervenor Concerns The Commission indicated that the bases for its imposition of the imme-diately effective shutdown Orders were certain concerns identified in the August 9,1979 Order as further specified in the Commission's March 6,1980 and March 23, 1981 Orders. Only two of the general concerns set forth in the August 9,1979 Order, those dealing with human errors and qu'etions about management capability and technical resources of the Licensee, are addos;ed by the PID.
The hearing addressed all of the specific issues delineated by the Com-mission in its Orders as well as other issues raised by the parties and the Board. With the exception of the subissue involving operator license exami-nations, over which the Board retained jurisdiction, the conclusions set forth in the PID on management competence issues are favorable to the eventual operation of the iMI-1.
PID at 337, Para. 585. Accordingly, with the exception of the one issue left open by the Board, the Board has made findings which, if accepted by the Commission, remove the basis for the immediate effectiveness decision insofar as management capability / operator training issues are concerned. These findings are, of course, subject to alteration by the Board depending on how the facts develop in the reopened
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hearing.
l Given this premise, the question is whether the Board's findings and conclusions as set forth in the PID are sufficiently brought into question that the Commission should not accept the PID for the purpose of lifting the management competence / operator training issue as a basis for suspending l
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theTMI-1 operating?icense.IIl In analyzing the Intervenors' concerns, the Staff is mindful that the standard established by the Commission against which these concerns must be measured is whether the concerns present "com-pelling safety considerations" which constitute " exceptional circten-s tances."E The Staff's conclusion is that the Intervenors' concerns do not rise to this level.
The basic concern raised in the TMIA Meno is that the Board improperly weighed the evidence presented in this proceeding in connection with its Contention 5.
This contention seeks to show that the Licensee management is not technically qualified in light of its past actions. Such actions include deferring safety-related maintenance and repair and disregarding the importance of safety-related maintenance in that it proposed a cut in the maintenance budget; failing to keep accurate and complete records related to maintenance; and extensively using overtime in performing safety-related maintenance.
Contr6fy to TMIA's argument that the Board conducted a " narrow, compartmentalized look" at its Contention 5 (TMIA Memo at 8), the Board extensively analyzed the issues raised by this Contention (PID Paragraphs 277-348). The Board pursued additional issues regarding Licensee maintenance practices during the year prior to the accident and the auditability of Licensee's maintenance records (PID Para. 280-1,302-3,314) on which THIA declined to cross-examine.
See, PID Para. 280-1.
In order to resolve the E Although the qualification is not repeated throughout this portion of the Reply, the following discussion, of course, does ret extend to the operator licensing issue reserved by the Board in its PID.
E CLI-73-38, supra at n.11, at 1083.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ issues, the Board carefully analyzed specific work requests by the Licensee's maintenance department which were received into evidence as TMIA exhibits (PID Para. 296-99,304-9).
The Board properly cited to the record in analyz-ing the issues and in support of its conclusions with respect to TMIA Con-tention 5.
In PID Paragraphs 282-299 the Board supports its conclusion that there was no evidence that the Licensee improperly deferred safety-related maintenance and repair beyond a point established by its own procedures nor was there evidence that the health and safety of the public was endangered.
Paragraphs 301-3 and 305-14 contain extensive record references to the effect that, although the Licensee has at times maintained inaccurate and incomplete maintenance records, it has proper?.v responded to correct its poor past systam.
PID Para. 304.
As a result, the Board found that there is reason-able assurance that the continuation of the Licensee's present transition l
phase and subsequently, the fully phased-in use of the new computerized system, along with the management controls in tracking and scheduling mainten-ance work, will solve the record keeping problems noted.
PID Para. 315.
Similarly, the Board considered the Licensee's across-the-board oper-ations and maintenance budget cut of about 6% which was proposed in 1979 after the original 1979 budget had been developed.
PID Para 320-24. After considsring the evidence on the subject, the Board properly concluded that although the proposed budget cut would have affected TMI-1 maintenance activities had the TMI-2 accident not intervened, there is no evidence to support TMIA's contention that this cut was drastic, that the management's selection of priorities for budget reduction failed to exclude from cuts items which affect safe operation of the plant, nor that the proposed cuts demonstrated an underlying management philosophy of compromising safety in favor of profits as alleged by TMIA.
PID Para. 324.
Further, the Board properly relied on the hearir.g record (PID Para. 333-47) to reach its con-clusion that, contrary to TMIA's allegation, the Licensee's nvertime policy and practice does not demonstrate that top managment puts profits ahead of safety, and that in any event the new policy established by the NRCb moots the overtime issue raised by TMIA.
PID Para. 343.
Finally, although TMIA l
did not pursue that part of its contention dealing with the adequacy and staffing of the Licensee's QA/QC programs related to maintenance in either its proposed findings (PID Para. 326) or its TMIA Memo, the Board also l-referred to the record to reech its conclusion on this issue.
In this regard, l
l the Board relied on the undisputed testimony of Licensee and NRC witnesses (PID Para. 328-9) in support of its conclusion that the enlargement of the Licensee's OA/QC program is adequate.
PID Para. 326, 330; see also, Para. 107-115.
I E ee, IE Circular 80-02, referenced at PID Para. 343.
S l
l l
j i The other significant lines of argument in the TMIA Memo are that the Board committed a " clear error of judgment and an abusive [ sic] discretion" in its reliance on both the Staff's and Licensee's testiniony, which TMIA considers unreliable, in regard to the issues involving the financial /techni-cal interface, management structure, and management response to the accident.
THIA Memo at 23-36. However, in each case, TMIA cites not to some facet of the witness' character which renders that person unreliable as a witness, but merely to THIA's bald assertion that these witnesses are unreliable.E In connection with the last issue, the management response to the accident, the Board carefully documented its conclusion that in general, no deficiencies were found in the Licensee's corportte or plant management, with respect to management's response to the THI-2 a".; dent, that have not been corrected or which must be corrected before there is reasonable assurance that Unit 1 can be operated safely.
PID Para. 506.
In this regard, the Board examined not only the evidence contained in the record (PID Para. 462-8,470-82,487-8),
but also certain documents not in evidence (PID Para. 469) to determine whether it should produce additional evidence when no party was willing to do so (Id. at 506).
The Board emphasized that it had not, however, relied on extra-record material to base any findings or conclustens, but rather relied solely on the record of the proceeding.
Id.
In addition to not finding current deficiencies in connection with plant management, the Board assessed b n 131s regard, see TMIA's attack on the reliance of the Board on the I
testimony of Messrs. Deickacp (TMIA Memo at 23-4); Keimig (p. 26);
Haverkamp (p. 26); Lee (pp. 26, 30); Wegner (pp.27, 30); Shovlin (p. 28);
Licensee witnesses in general (p. 29); and Keaton and Long (p. 30).
and found capable the two individuals that TMIA would fault in this reprd, 1
Messrs. Herbein and Clark. See, PID Para. 140-2 and Para. 134-9, respec-tively.
The Aamodts also provide minimM record citations in support of their attacks on the PID. The first line of argument raised by the Aamodts is that the Board improperly found that the training of unlicensed personnel at TMI was adequate. They fault the Board for failing to adopt their find-ings, despite the fact that the testimony relied on by the Bo:rd, that of Staff witnesses Crocker and Allenspach (ff. Tr.12653), was uncontradicted by the Aamodts.
Not only did the Aamodts decline to cross-examine these Staff witnesses (Tr. 12651), but they did not offer any evidence of their own on the subject of the unlicensed operation staff. E Instead, they con-centrated on the training of licensed opertors. See, Aamodt, ff. 12931.
Under the circumstances, the Board's reliance on the record of the hearing, as opposed to the argument set Crth by the Aamodts' for the first time in their Reply Findings, was appropriate.
Turning briefly to the merits of the Aamodts' argument regarding the adequacy of training of unlicensed personnel, the thrust of the Aamodts' E The Aamodts mention documents referenced in Staff testimony, such as NUREG-0731, as being "not allowed on the record." Aamodt Latter at 2.
i l
In fact, no party offered the NUREG, other ANSI standards or related l
Regulatory Guides into evidence.
Although these documents are desc*ibed in Staff Testimony (Crocker and Allenspach, ff. Tr.12653) ana were pro-posed as Staff exhibits in the proceeding, the Staff elected rot to offer l
them, and to merely rely on the witnesses' sumary of them, in light of the lack of interest expressed by the Aamodts in the subject of un-licensed personnel training.
For example, the Aamodts did not want to i
examine the referenced Staff witnesses on their prefiled testimony on l
this subject (Tr. 12651) and did not offer any evidence of their own on l
the issue.
l concern appears to be that unlicensed personnel have not been trained regard-ing the lessons learned from the THI-2 accident, and that current standards of personnel qualifications were not used by the Staff. Aamodt Letter at 2-5.
What the Aamodts fail to consider is that the referenced Staff testimony ex-tensively describes the post-TMI-2 accident modifications to the standards against which licensee personnel are evaluated and trained.E In addition, modifications to e 'edural controls since the accident are also discussed in thattestimony.E inat testimony indicated that key plant personnel meet the qualification requirements described in the 1978 varsion of the stand-ards,E that personnel gene; ally met the standards set forth in draft NUP.EG-0731,E and that THI-1 would be required to be in accord with the draft engu'atory guide covering procedural controls before the St:ff would recommend restart of the facility.E In a subsequent Supplement to its Safety Evaluation Report, the Staff concluded that the Licensee's auxiliary operator training and qualifications, as well as the training programs for plant technicians, were acceptable in light of the propose:t revisicn of the Regulatory Guide which, in turn, implemented the proposed 1979 version of the standard referenced above innd in the Aamodt letter at page 3 (paragraph 4).E E ee Crocker and Allenspach, ff; Tr.12653, at 4-9.
S E Id. at 10,11; regarding other upgraoings for personnel qualifications, training and administrative controls, see Id. at 11-15.
E Id. at 5.
E Id. at 9.
E Id. at 11.
E Staff Ex.13 at 3, 4.
. l Finally, the Aamodts criticize the Board for relying on the Staf f's Near Term Operating License inspection conclusion that training of the plant staff met with NUREG-0731 guidelines, when, according to the Aadmots, the inspection only dealt with training of Shift Technical Advisors (STAS).
In fact, the Staff testified that this inspection had a much broader scope, covering Licensee management and technical competence in the arecs of:
STAS; staffing for startup and testing program; on-site technical support center; on-site operational support center; independent safety "eviews; off-site and on-site staffing; dissemination of operating experiences; and communications with the NRC.EI In sum, the references cited by the Board in PID Paragraph 164 ss well as the discussion in Parag.aphs 170-181, and 208-29, adequately support the Board's finding regarding the adequacy of the trainirg of unlicensed per-sonnel at THI-1.
The Board's treatmant of this issue is adeauste, especially in light of the fact that the Aamodts effectively abandoned thi; part of their contention during the hearing in favor of a concentration on licensed operator training and testing.El The other main argument presented by the Aamodts concerns the training ar.d testing of licensed operators. Aamodt Letter at 4-7.
Again, the Aamodts
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fault the Board for relying on testimony of Licerisee personnel, although they do not identify any specific flaws ir, the testimony that these witnesses produced.
Aamodt Letter at 4.
In fact, the PID indicates that *,he Board El Staff Ex. 4, App. B, at 1.
El See note 16, supra.
carefully examined not only the Licensee's training program, but the indivi-duals responsible for running it.23 The Board studied the organization of the Licensee's training department (PID Para. 170,172,174), in addition to the contents of the actual training courses (PID Para. 176,178-86)and Licensee-administered examinations to test knowledge gained during the train-ing (PID Para.187-95), with special emphasis on the Operator Accelerated Retraining Program (0ARP) (PID Para. 196-207), which was implemented to satisfy the Commission's requirement that the Licensee retrain and retest its licensed operators.2_5/
Further, the Board relied not only on Licensee employees to evaluate the training program, but on independent experts who assessed Licensee's training programs, and found them to be acceptable.
PID Para. 225-41.
A principal theme in the Aamodts' Letter in connection with the question of operator qualifications and training of operations personnel is the con-cern about the agreement reached between the Commonwealth of Pennsylvania and the Licensee which resolved the Commonwealth's concerns regarding certain management issues. Aamodt Letter at 5-7.
The Aame ts argue that the Board improperly relied on the agreement in developing its findings, and argue that their own findings " paralleled the Commonwealth findings in common areas".
Aamodt Letter at 5.
Presumably, the Aamodts would argue that since their own concerns still remain, that the Commonwealth's too, must survive the agreement. However, as the Board correctly points out, this argument 2y PID Para. 168-207; note particularly Paras. 171, 173 and 175.
E ugust 9, 1979 Order, supra,Section II.1(e).
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__ answers itself (PID Para. 536), for the Commonwealth's concerns were generally consistent with the Aamodts, and the Commonwealth was satisfied that its concerns and misunderstandings were resolved by the imposition of commitments contained in Licasee Exhibits 56 and 59.
PID Para. 528-9.
However, the Board carefully examined the Commonwealth's withdrawn concerns in evaluating the adequacy of the agreement, and concluded, with record citation, that the agreement did resolve certain Board concerns.
- PID, Para. 532; see generally, Para. 525-82.
The Aamodts also criticize the shift manning of TMI-1, which is also covered by the Commonwealth-Licensee agreement. Aamodt Letter at 4,5.
The Aamodts indicate that there is a shortage of licensed operators at TMI-1, and that the Board's condition regarding shift staffing is inadequate.
Id.
However, the Board recognized that the Aamodt's concern is not based on the record, but instead consists of " unpersuasive argument".
PID Para. 575.
On the other hand, the Board relied or. Staff and Licensee witnesses, as well as its own analysis, in concluding that the shift staffing reflected in its recommended license Condition 9 is adequate.
PID Para. 556-78, 583.
In assessing the shift staffing needs, the Board also addressed the staffing needs during an emergency and concluded, based on a consideration of the record, that the recommended license condition covering shift staffing would be adequate.
PID Para. 558-66.
Therefore, as to the issues referenced by TMIA and the Aamodts which were addressed by the Board in its PID, there remain no concerns which rise to the level of " compelling safety considerations" or " exceptional circum-stances" which would, in and of. themselvas, justify the immediate suspension
- of a license.
Further; the i. sue which remains oper., that of operator licensing and the cheating incident, should not prevent the Commission from finding that all other issues related to management competence and operator training cannot be considered resolved sufficiently so that its review of the bases for immediately suspending the TMI-1 license can commence. Since the Board was aware of the existence of the cheating allegations and their potential impact on issues beyond the narrow subissue of operator licensing and proceeded with the issuance of the PID, the Commission can appropriately commence its review of the unaffected portions of the PID.
Comission review would be entirely consistent with past Commission practice.
In the Rancho Seco proceeding, supra, the Commission lifted the immediate suspension of that facility's operating license after specified Commission concerns had been resolved, but before a hearing could be held as requested by certain persons to consider whether the action taken by the licensee in that proceeding was necessary and sufficient.
In determining that the immediate effectiveness of the license suspension was no longer necessary, the Commissior declared that "(m)ere speculation that the hearing might develop facts indicating the need for further enforcement action does not suffice to warrant a prohibition on restart of the facility."E Similarly, the mere fact that issues are on appeal or that the TMI-1 hearing will be reopened, creating the possibility that some previously published findings of E
CLI-79-7, supra, at 681.
_ - _ - _ - the Board may be affected, does not in and of itself constitute grounds for failing to review whether or not to lift the suspension. E l IV.
CONCLUSION l
In conclusion, the Staff finds that there is no reason why the Commis-sion should not immediately commence its review of the PID. The decision does not authorize cay action, but merely contains a recommendation to the Commission that the management capability / operator training issues are favorably resolved, with the exception of operator testing over which the l
l Board has retained jurisdiction.
In considering what effect the PID has on l
the bases for the Commission's initN imposition of the immediately effec-tive shutdown Oders in this proceeding, however, the Staff submits that, with the exception of the operator testing subissue for which the Board has The Staff indicated in its previously filed comments that, although not applicable, the Commission may wish to use the criteria of 10 CFR 9 2.764 to this proceeding as it applies to the Commission's review of an initial decision authorizing the issuance of an operating license as an aid in deciding whether to lift the immediate effectiveness of the TMI-1 license suspension.
StX f Comments at n. 7.
The Staff considers that, if the Commission were to apply these criteria in light of the arguments presented by the Intervenors, the record in this proceeding is adequate for the purpose. Although the general management capability /
operator training issue may be of sufficient gravity to warrant imme-diately suspending the TI-I-1 license, the extensive record cited by the Board in support of its conclusions renders it unlikely that the issue was resolvd incorrectly below.
Also significant is the fact that operation of TMI-1 during the appellate review would not prejudice the outcome of the review, for resumed operation would not preclude a subse-quent decision by the Appeal Board or the Commission that management or operating personnei of the Licensee must be reorganized, retrained, or restaffed, for example. A relevant public interest factor concerning the decision whether to permit restart of the facility is the loss of power and cost to the Licensee and its consumers which result from the continued outage of the facility. See Staff Comments at n. 14.
not yet reached conclusions, the original concerns regarding operator error and management competence in connection with the TMI-2 accident are satisfac-torily resolved, and that the concerns raised by Intervenors do not present compelling public health, safety or interest considerations which would justify the continuation of the immediate suspension of the TMI-1 license on this ground.
However, the remaining concerns which formed the bases for the initial shutdown Orders are not resolved by the PID. Accordingly, unless the Commission determines that the resolution of the management competence /
operator error issue sufficiently resolves the bases for imposing the immediate effectiveness of the TMI-1 license suspension, the Staff presum.es that the license suspension will remain in effect at least until after the Board issues its final initial decision in this proceeding.
Respectfully submitted, YS.-
Daniel T. Swanson Counsel for NRC Staff Dated at Bethesda, Maryland this 28th day of September, 1981 l.
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UNITED STATES OF AMER'f,A NUCLEAR REGULATORY COMMISSION BEFORE THE COMi4ISSION In the Matter of
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METROPOLITAN EDIS0N COMPANY, ET AL.
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Docket No. 50-289 1
(Restart)
(Three Mile Island Nucleir Station, Unit 1)
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CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF REPLY TO COMMENTS ON IMMEDIATE EFFECTIVENESS WITH RESPECT TO LICENSING BOARD DECISION.ON MANAGEMENT COMPETENCE /
OPERATOR TRAINING in the above-captioned proceeding 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 interr.al mail system, this 28th day of September, 1981.
Copy to Secretary's 6ffice sent by messenger.
Samuel J. Chilk Robert Adler, Esq.
Secretary of the Commission 505 Executive House U.S. Huclear Regulatory Commission P.O. Box 2357 Washington, DC 20555 Harrisburg, PA 17120 Leonard Bickwit, General Counsel
- Honorable Mark Cohen l
U.S. Nuclear Regulatory Commission 512 E-3 Main Capital Building Washington, DC 20555 Harrisburg, PA 17120 Ivan W. Smith, Esq., Chairman (2)*
Walter W. Cohen, Consumer Advocste Administrative Judge Department of Justice Atomic Safety and Licensing Board Strawberry Square,14th Floor U.S. Nuclear Regulatory Commission Harrisburg, PA 17127 Washington, DC 20555 Mr. Steven C. Shoily Dr. Walter H. Jordan Union of Concerned Scientists i
Administrative Judge 1725 I Street, N.W.. Suite 601 881 W. Outer Drive Washington, DC 20006 Oak Ridge, TN 37830 Mr. Thomas Gerusky Dr. Linda W..Little Bureau of Radiation Protection Administrative Judge Department of Environmental 5000 Hermitage Drive Resources Raleigh, NC 27612 P.O. Box 2063 Ha, risburg, PA l'i'20 George F. Trowbridge, Esq.
Shaw, Pittman, Potts & Trowbridge Mr. Marvin I. Lewii 1800 M Street, N.W.
6504 Bradford Terrace Washington, DC 20006 Philadephia, PA 19149
2-Metropolitan Edison Company John Levin Esq.
ATTN:
J.G. Herbein, Vice PA Public Utilities Commission P.O. Box 542 Box 3265 Reading, PA 19603 Harrisburg, PA 17120 Mi.. Jane Lee Jordan D. Cunningham, Esq.
R.D. #3, Box 3521 Fox, Farr and Cunningham Etters, PA 17319 2320 North 2nd Street Harrisburg, PA 17110 Ms. Gail B. Phelps est Philadelphia Street
'd e Bradford Ti York, PA 17404 315 Peffer Street Ha sWg, M 17102 John E. Minnich, Chairman Dauphin Co. Board of Commissioners Dauphin County Courthouse Ms. Ellyn R. Weiss Front and Market Streets William S. Jordan, III Harrisburg, PA 17101 Sheldon, Harman & Weiss 1725 I Street, N.W.
Suite 506 Robert Q. Pollard 609 Montpelier Street Washington, DC 20006 Baltimore, MD 21218 Thomas J. Germine, Deputy Chauncey Kepford Attorney General Judith H. Johnsrud Division of Law - Room 316 Environmental Coalition on 100 Raymond Boulevard Nuclear Power Newark, N.J.
07102 432 Orlando Avenue State College, PA 16801 Atomic Safety and Licensing Board Panel
- Ms. Frieda Berryhill, Chairman U.S. fluclear Regulatory Commission Coalition for Nuclear Power Plant Washington, DC 20555 Postponement 2610 Grendon Drive Atomic Safety and Licensing Appeal Wilmington, DE 19808 Panel (5)*
U.S. I uclear Regulatory Commission Washington, DC 20555 Ms. Marjorie M. Aamodt R.D. #5 Coatesville, PA 19320 Docketing and Service Section (l)*~ ~~~ ~
Office of the Secretary
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Senator Allen R. Carter, Chairman U.S. Nuclear Regulatory Commission Joint Legislative Committee on Washington, DC 20555 Energy Post Office Box 142 Gary L. Milhollin, Esq.
1815 Jefferson Street Suite 513 Senate Gressette Bldg.
Madison, WI 53711 Columbia, SC 29202
[U J)~~w,x Daniel T. Swanson CcJnsel for NRC Staff
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