ML20031G110
| ML20031G110 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 10/15/1981 |
| From: | Swartz L NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8110210115 | |
| Download: ML20031G110 (12) | |
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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Docket No. 50-289 METROPCLITAN EDIS0N COMPANY
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(Restart)
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(Three Mile Island, Unit 1)
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MOTION FOR RECONSIDERATION OR, IN THE ALTERNATIVE, MOTION FOR DIRECTED CERTIFICATION I.
INTRODUCTION On October 2,1981. Judge Milhollin, acting as Special Master under 10 LFR 92.722 in the reopened TMI-1 restart proceeding, distributed a document entitled " Additional minimum evidentiary presentations specified by the Special Master at the Conference of October 2,1981."
In this document, Judge Milhollin indicated that the evidence listed is to be presented "in additior to the matters previously nominated by tho parties in their letter of Septembn 24, 1981 to the Atomic Safety and Licensing Board."
~
At the conference of parties on October 2 and 3,1981, the Staff objected to certain of the additional evidentiary requirements set forth in Judge Milhollin's October 2,1981 ruling and formally requested the Special Master to modify or delete portions of the requirements.
Tr. 23238-45. Judge Milhollin ruled favorably on the Staff's oral motion to modify one requirement (Tr. 23279) but declined to make the deletions requested by the Staff (Tr. 23280-82).
PI"c"ATSD CRIGINAL Certifi.v1 By
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. In the present Motion, the Staff requests that the Special Master reconsider his ruling with respect to the one requirement which asks for evidence as to the " attitude of the NRC Staff." For the reasons stated below, the Staff believes such an evidentiary presentation would be outside of the scope of the reopened proceeding.
In the alternative, the Staff moves that the question of the need for the presentation of evidence on the Staff's attitude be certified to the Licensing Board pursuant to 10 CFR 92.722(a)(2) and the 803rd's directive in its
" Memorandum and Order Reopening Record on Matters Related to Cr. eating, Appointing a Special Assistant, and Scheduling a Conference of the Parties", dated September 14,1981, at 3-4.
II.
DISCUSSION A.
An Inouiry Into the ' Attitude of the NRC Staff" Is Not Appropriate In These Circumstances.
On October 2, 1981, the Licensing Board in this proceeding presided over a discussion by the parties concerning the scope of the issues to be heard in the hearing on the cheating incident at TMI-1.
Following this discussion, the Board ruled on the issues to be litigated in the reopened proceeding. Tr. 23133-62.
In explaining the Board's view as to the scope of the issues to be litigated, Chairman Smith stated that an issue to be brought before the Special Master should have "a clear nexus to the issue of cheating" because it was "the issue of alleged cheating which has been the sole
. basis for reopening the evidentiary record." Tr. 23127.
- Further, Chairman Smith explained in reference to Issue 10] that the " inquiry into 1
the substance of the examinations will be limited to permit evidence on whether the NRC exams are, because of their content, amenable to cheating or otherwise subject to defeat of their intended purpose." Tr. 23127.
In a subsequent discussion of Issue 10, Chairman Smith also stated that we were concerned that there is a possibility, without knowing until we hear the evidence, that the NRC testing requirements could be met and yet, the substantive purpose of the examination could be defeated by some mechanism in the examples which we gave but not to a full inquiry into whether the substance of the test is
[ sufficient] to train operators adequately to protect the public health and safety.
Tr. 2314,6-47.
In his " Additional minimum evidentiary presentation", however, the Special Master seeks to inquire into the attitude of the Staff under Issue 10.2] Specifically, the Special Master stated that:
[t]he Kemeny Commission found that operator training was graatly deficient; that the depth of understanding was far too shallow.
It also found that the branch of NRC that monitored operator training was " weak and understaffed," and that NRC limited itself to "giving routine exams."
It concluded that no quantity of 1/
Issue 10 states:
The adequacy of the administration of NRC licensing examinations for THI-1 personnel, including pro::toring, grading, and safeguarding the integrity of examination materials; in addition, the adequacy of the Staff's review of the administration of Licensee's Category T examinations; also the adequacy of the Staff's plan for retesting operators and monitoring its NRC examinations to assure proper adherence to NRC testing requirements and to provide reasonable assurance that TMI-1 can be operated safely.
2]
In explaining this evidentiary requirement, Judge Milhollin made reference to Issue 11.
That issue, however, concerns the adequacy of staffing at TMI-1.
From the discussion surrounding the " Attitude of the NRC Staff" it is clear Judge Milhollin intended this subject to be included in Issue 10.
See Tr. 23281.
. " fixes" would cure the basic problem, which it found to be the attitude of the people who were involved.
Because the cheating incident occurred after the Staff had responded to the Kemeny Commission and promised to improve, what does the possibility of laxity in the Staff's procedures indicate about the Staff's attitude?
Ff. Tr. 23187, at 3.
Judge Milhollin explained that the attitude of the Staff "is relevant to determining the adequacy of NRC plans in the future."
Tr. 23281.
The concerns outlined by the Special Master which relate to the
" attitude of the NRC Staff" are outside of the scope of the reopened proceeding and outside the scope.of Issue 10 as it was set forth by the Licensing Board.
The Staff's argument to this effect was presented orally to the S'pecial Master at the conference of parties. Tr. 23244-45.
The attitude of the NRC Staff has no nexus to the cheating incident at TMI-1.
While there are those who would argue that the procedures the Staff used to administer the April 1981 licensing examinations may have contributed to the cheating incident, the " attitude" of the Staff bears no relation to that incident.
The Staff agrees that the adequacy of the procedures used in the April examinations and those which will be used in future examinations at TMI-1 is a proper subject for litigation in the reopened hearing.
An inquiry into how, if at all, these procedures reflect upon the attitude of the NRC Staff is not appropriate.3/
-3/
Judge Milhollin believes that the attitude of the Staff is relevant to the issue of the adequacy of the Staff's examination process. -
Tr. 23281. An inquiry into the actual procedures to be used, however, and a determination as to the adequacy of the procedures themselves, would be :the only objective assessment of the NRC's examination process.
. Moreover, the question of the Staff's " attitude", if raised in the broader context of the entire TMI-1 restart proceeding, would have been equally inappropriate. The Commission's " Order and Notice of Hearing" dated August 9,1979 clearly set forth "short-term" and "long-term" requirements to be met by the Licensee.and authorized the Licensing Board to conduct a hearing into the whether these requirements were necessary and sufficient.
10 NRC 141, 146 (1979). The " attitude" of the NRC Staff was not included as an issue to be considered by the restart Licensing Board.
Not only is the question of the " attitude" of the Staff outside the scope of, the reopened hearing and the initial restart hearing, but the bases on which the Special Master relies to request the Staff to prepare testimony on this subject have already been litigated in the management phase of the restart proceeding.
The Special Master cites the Kemeny Commission's findings relating to operator training and the NRC licensing examination as the reasons why an inquiry intc the Staff's attitude is relevant.
These bases, however, were the subject of extensive testimony, cross-examination, and proposed findings durir.g the initial TMI-1 restart hearing.
Further, the Licensing Board in its Partial Initial Decision on management issues dated August 27, 1981 made specific findings on these concerns. Although the Kemeny Commission found serious deficiencies in operator testing and licensing, the Board found that the Licensee and the NRC Staff had sufficiently improved those processes.
Specifically, the Board found the Licensee's operator training program " comprehensive and i
wT
. acceptable."
PID at Paragraph 276.
The Board also found that the Staff had modified its examinations since the THI-2 accident to incorporate new subject matter, including thermodynamics, heat transfer, and fluid flow; had imposed time limits for completion of the examination; had instituted cral examinations for senior operators; and had increased the passing grade criteria.
PID at Paragraph 206. These issues, which were specifically resolved by the Board and were not left open pending the hearing to be held on the cheating incident, should not be relitigated.S/
Because the " attitude of the NRC Staff" is not within the scope of the hearing and because the bases for the Special Master's request for testimony on this subject have previously been addressed, this is not a matter which should be raised in the reopened hearing on cheating.
Therefore, the Staff moves that the ruling of the Special Master regarding this issue be reconsidered and that the paragraph entitled
" Attitude of the NRC Staff" be deleted from the " Additional minimum evidentiary presentations specified by the Special Master."
B.
This Issue Should Be Certified to the Licensing Board.
In the event the Special Master declines to reconsider his previous ruling, the Staff requests that this question of the need for evidence on Staff " attitude" be -certified to the Licensing Board pursuant to 10 CFR 52.722(a)(2) and the Board's Memorandum dated September 14, 1981.
Section 2.722(a)(2), in pertinent part, states that appeals from evidentiary rulings 4/
The Staff agrees with the Licensing Board, however, that an inquiry into whether the purpose of the operator testing and licensing i
process can be defeated by cheating or some other method is permissible.
. made by a Special Master "may be taken to the presiding officer in accordance with procedures which shall be established in the presiding officer's order appointing the Special Master." The Board's Memorandum dated September 14, 1981, which appointed Judge Milhollin as Special Master in this proceeding, stated Parties may seek discretionary review by us of a significant evidentiary ruling by the Master under the guidelines applicable to requests for directed certification to an appeal board pursuant to 10 CFR 2.718(1).
However, we establish the rule in this proceeding that it shall be a prerequisite 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 pursuant 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.
[ footnote deleted]
Memorandum at 3-4.
In the instant case, the Special Master has made a "significant evidentiary ruling" requiring the Staff to present testimony on a subject which goes beyond the scope of issues set forth by the Licensing Board.
Further, the Staff has presented its objections to this issue to the Special Master both orally at the conference of parties and in the present written Motion. A request to certify the question to the Licensing Board is, therefore, appropriate.5/ See Toledo Edison Co.
(Davis-Besse Nuclear Power Station, Unit 1), ALAB-297, 2 NRC 707 (1975)
(Licensing board should be afforded reasonable opportunity to decide itself the question sought to be certified to the Appeal Board.)
5/
Based on its reading of the Board's September 14, 1981 Memorandum, the Staff understands that, should the Special Master decline to certify the question to the Licensing Board, the Staff would have satisfied the prerequisites for requesting directed certification from the Board itself.
. A party seeking to have a matter certified by a presiding officer must establish that a referral under 10 CFR 92.730(f) would have been proper.
Puerto Rico Water Resources Authority (North Coast Nuclear Plant, Unit 1), ALAB-361, 4 NRC 625 (1976). Here, the Licensing Board has stated that it views its relationship to the Special Master as being analogous to the role of an appeal board with respect to interlocutory evidentiary rulings by a licensing board in a standard NRC proceeding.
" Memorandum and Order" dated September 14,1981, at 3.
Thus, in asking the Special Master to certify the question of the propriety of litigating the attitude of the Staff, the Staff must show that an interlocytory appeal would be proper.
The Appeal Board has stated that it would undertake discretionary interlocutory 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 Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192(1977).
In the Staff's view, both standards are met in this instance.
As discussed above, the Licensing Board in th>
ceeding set forth the scope af the issues to be heard in the reopened hearing.
The Board ruled that an issue litigated in the hearing should have "a clear nexus to the issue of cheating." Tr. 23127.
With respect to Issue 10,
. the Board limited the discussion of the NRC examination process to an inquiry on whether that process could be defeated by some mechanism, including cheating. Tr. 23146-47.
By asking the Staff to present testimony on its " attitude" in the context of Issue'10, the Special Master has gone beyond the boundaries set by the Licensing Board for the reopened hearing and for Issue 10.
The attitude of the NRC Staff, bears no relation to the cheating incident which occurred during the April 1981 NRC licensing examinations.
Further the Staff's attitude has no relevance to the procedures which were used and those which will be used to administer the NRC licensing examinations.
The Staff is directly impacted by this request for testimony in that it will be required to prepare and present such testimony on a matter.which is not relevant to the issues in the reopened proceeding. This impact is immediate, irreparable and cannot be alleviated by subsequent appeal since the Staff resources, manpower, and time required to prepare and present the requested testimony as well as the hearing time required for litigation of the issue are needlessly lost once the testimony has been prepared and presented. Thus, the first standard for interlocutory review is met.
In addition, by requiring the presentation of testimony on a matter t
which is well beyond the scope of issues in the reopened hearing, the Special Master's request for testimony on the Staff's attitude improperly expands the scope of the proceeding and inserts an additional and unnecessary issue for litigation.
Such litigation on a matter beyond the scope of issues originally established clearly affects the basic
4
. structure of the reopened proceeding in a pervasive and unusual manner.
Thus, the second standard for interlocutory review is also met.
Having met the applicable standards, the matter must be certified to the Licensing Board.
III.
CONCLUSION AND REQUEST FOR RELIEF For the reasons stated above, the Staff requests the Special Master to reconsider his earlier ruling concerning the issue of the " attitude of the NRC Staff" and to determine that evidence on such issue is inappropriate and need not be presented.
In the event the Spec'al Master denies the motion for reconsideration, the Staff requests the Special Master tg certify the question as to whether testimony on Staff attitude need be presented to the Licensing Board.
Respectfully submitted,
.i" l
uci da low S rtz/
Cou sel for NRC Staff Dated at Bethesda, Maryland this 15th day of October, 1981.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of METROPOLITAN EDISON COMPANY, ET AL.
Docket No. 50-289 (Restart)
(Three Mile Island, Unit 1)
(ReopenedManagementIssues)
CERTIFICATE OF SERVICE
-I hereby certify that copies of " MOTION FOR RECONSIDERATION OR, IN THE ALTERNATIVE, MorION FOR DIRECTED CERTIFICATION" in the above-captioned proceeding have been served on the following by deposit in tb.tited States mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Cccmission's internal mail system, this 19th dayofhtober,1981,or,asindicatedbydoubleasterisks,werehand-delivered on October 16, 1981:
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- Stephen F. Eilperin, Chairman Dr. Linda W. Little Atomic Safety & Licensing Appeal Administrative Judge Board Panel 5000 Hermitage Drive U.S. Nuclear Regulatory Commission Raleigh, North Carolina 27612 Washington, DC 20555
- George F. Trowbridge, Esq.
- Dr. Jonn H. Buck Shaw, Pittman, Fotts & Trowbridge Atomic Safety & Licensing Appeal 1800 M Street, N.W.
Board Panel Washington, DC 20006 U.S. Nuclear Regulatory Comraission Washington, DC 20555
- Robert Adler, Esq.
I 505 Executive House
- Christine N. Kohl P. O. Box 2357 Atomic Safety & Licensing Appeal Harrisburg, Pennsylvania 17120 Board Panel U.S. Nuclear Regulatory Commission Honorable Mark Cohen Washington, DC 20555 512 D-3 Main Capital Building Harrisburg, PA 17120
- Ivan W. Smith, Esq.
Administrative Judge i
Atomic Safety & Licensing Board Panel
- Ms. Marjorie Aamodt U.S. Nuclear Regulatory Commission R.D. #5 Washington, DC 20555 Coatesville, PA 19320 Dr. Walter H. Jordan Mr. Thomas Gerusky Administrative Judge Bureau of Radiation Protection 881 W. Outer Drive Dept. of Environmental Resources Oak Ridge, Tennessee 37830 P. O. Box 2063 Harrisburg, PA 17120
e s
' Mr. Marvin I. Lewis 6504 Bradford Terrace
- Atomic Safety and Licensing Appeal Board Philadelphia, PA 19149 U.S. Nuclear Regulatory Commission Washington, DC 20555 Metropolitan Edison Company ATTN:
J. G. Herbein, Vice President
- Atomic Safety and Licensing Board Panel P. O. Box 542 U.S. Nuclear Regulatory Commission Reading, PA 19603 Washington, DC 20555 Ms. Jane Lee
- Secretary R.D. 3; Box 3521 U.S. Nuclear Regulatory Comission Etters, PA 17319 ATTH:
Chiaf, Docketing & Service Br.
Washington, DC 20555 Walter W. Cohen, Consumer Advocate Department of Justice William S. Jordan, III, Esq.
Strawberry Square,14th floor Harmon & Weiss Harrisburg, PA 17127 1725 I Street, N.W.
Suite 506 Thomas J. Germine Washington, DC 20006 Deputy Attorney General Divisiop of Law - Room 316 John Levin, Esq.
1100 Raymond Boblevard Pennsylvania Public Utilities Comm.
Newark, New Jersey 07102 Box 3265 Harrisburg, PA 17120 Allen R. Carter, Chairman Joint Legislative Comittee on Energy Jordan D. Cunningham, Esq.
Post Office Box 142 Fox, Farr and Cunningham Suite 513 2320 North 2nd Street Senate Gressette Building Harrisburg, PA 17110 Columbia, South Carolina 29202
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- Louise Bradford Robert 4. Pollard
'Three Mile Island Alert 609 Montpelier Street 10:1 Green Street Baltimore, Maryland 21218 Harrisburg, PA 17102 Chauncey Kepford Ms. Ellyn R. Weiss Judith Johnsrud Harmon & Weiss Environmental Coalition en Nuclear Power 1725 I Street, N.W.
433 Orlando Avenue Suite 506 State College, PA 16801 Washington, DC 20006 Ms. Frieda Berryhill, Chairman Mr. Steven C. Sho' lly Coalition for Nuclear Power Plant Union of Concerned Scientists Postponement 1725 I Street, N.W.
2610 Grendon Drive Suite 601 Wilmington, Delaware 19808 Washington, DC 20006 Gail Phelps
- Gary L. Milhollin, Esq.
ANGRY 1815 Jefferson Street i
245 W. Philadelphia Street Madison, WI 53711 York, Pennsylvania 17401 bb
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Lucinda Low Sw'a'rtz Counsel for NRC Staff