ML20039G408
| ML20039G408 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 01/13/1982 |
| From: | Cutchin J, Gray J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 8201180177 | |
| Download: ML20039G408 (15) | |
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IDITED STATES OF A:: ERICA
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!!UCLEAR REGULATORY C0:MISS10il
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%L BEFORE THE COMMISSI0il z,
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In the liatter of
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f1ETROPOLITAf1 EDISOff C0:!PA'lY, ET AL.)
Docket flo. 50-289 (Three Mile Island I;uclear Station, Unit I)
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flRC STAFF C0f t 1EilTS Oil WHETHER C0 ::11SSI0ft Si10VLD DEFER RESTART DECISI0ft UtlTIL ISSUAflCE OF LICEllSIflG BOARD'S OPIfil0N Oil OPERATOR CHEATIflG IllCIDEllTS James M. Cutchin IV Counsel for flRC Staff Joseph R. Gray Counsel for flRC Staff January 13, 1982 w w.... >
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of METROPOLITAN EDIS0N COMPANY, ET AL.)
Docket No. 50-289 (Three Mile Island Nuclear Station, Unit 1)
)
NRC STAFF C0ftMENTS 03 WHETHER COMMISSION SHOULD DEFER RESTART DECISION UNTIL ISSUANCE OF LICENSING BOARD'S OPINION ON OPERATOR CHEATING INCIDENTS James M. Cutchin IV Counsel for NRC Staff Joseph R. Gray Counsel for NRC Staff January 13, 1982 w
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TABLE OF CONTENTS 4
1 PAGE I.
INTR 000CTION.............................................
1 II.
DISCUSSION A.
To Authorize Restart, the Commission Must Find That Those Concerns Which Prompted Its Immediately Effective Shutdown Order Have Been Satisfactoril Resolved........................................y 4
B.
The Licensing Board's Partial Initial Decisions Resolve Management-Related Concerns at least to a Degree Sufficient to Allow TMI-1 Restart and Limited Operation Now........................................
6 C.
The Pendency of the Reopened Hearing on Operator Cheating is Not, Itself, a Bar to Authorizing TMI-1 Res ta rt a nd Limi ted 0pera tion........................
9 III.
CONCLUSION...............................................
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TABLE OF CITATIONS PAGE JUDICIAL PROCEEDINGS ICC v. Oregon Pacific Industries, Inc., 420 U.S. 184 (1975)....
5 Friends of the Earth, Inc. v. U.S., 600 F. 2d 753
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( 9 t h C i r. 19 7 9 )................................................
10 NorthwestAirlinesv. CAB,539F.2d748(D.C.Cir.1578)......
5 NUCLEAR REGULATORY COMMISSION PROCEEDIllGS Consumers Power Co. (ftidiand Plant, Units 1 & 2), CLI-73-38, 3 X'EC 1082 (1973)..............................................
10 Metropolitan Edison Co., et al. (Three Mile Island, Unit 1)
Docket No. 50-289 (Commission's July 2, 1979 Order).......
4 CLI-79-8, 10 NRC 141 (1979) (August 9, 1979 Order)........
3,4,5,6 CLI-81-9, 14 NRC (1981) (August 20, 1981 Order).......
1 CLI-81-34, 14 NRC (1981) (December 23, 1981 Order)....
6 Docket No. 50-289 (Commission's January 11, 1982 Order)...
2 LBP, 14 NRC (August 27, 1981) (Partial Initial Decision).................................................
1, 7 Docket No. 50-289 (ASLB Menorandum and Order dated m
September 19,1981).......................................
1 LBP, 14 NRC (December 14, 1981) (Partial Initial Decision).........................................
2,7,8 Sacramento !!unicipal Utility District (Rancho Seco Nuclear tenerating Station), CLI-79-7, 9 NRC 680 (1979)................
9 Toledo Edison Co., et al. (Davis-Besse, Unit 1)
Docket No. 50-346, Order da ted July 6, 1979....................
10 STATUTES 5 U.S.C. 6558, l9(b) of Administrar.ive Procedure Act ( APA).....
4, 5 42 U.S.C. 62231, s181 of Atomic Energy Act of 1954, as amended....................
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IJNITED STATES OF AMERICA
' NUCLEAR REGUL'ATORY COMf11SSION BEFORE THE COMMISSION' IntheMatterof
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METROPOLITAN EDIS0N COMPANY, ET AlJ Docket No. 50-259
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~(Restart)
-('Three Mile Island Nuclear Station,)
Unit No. 1)
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NRC STAFF C0f'MLNTS'ON WHETHER COMMISSION SHOULD DEFER RESTART DECISION UNTIL ISSUANCE OF LICENSING BOARD'S-0 PINION ON OPERATOR CHEATING INCIDENTS
'I.
INTRODUCTION On November 30,1981,'tne Commission issued an Order inviting the l
- parties to the captioned proceeding to file comments with regard to the
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4 frnediate effectiveness of the Commission's TMI-I shutdown order in light of'the Atomic Safety and Licensing Board's (Licensing Board) decision on b
h'ardware/designissues,emergencyplanningandunitseparationforTMI.1f-Specifically, the Commission requested comments on:
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On August 27, 1981, the Licensing Board issued its first Partial Initial Decision relating to Management issues in which it resolved such issues in a manner favorable to the eventual operation of TMI-1 4-with.the exception of the subissue on operator license examinations as to which it retained jurisdiction..(Metroplitan Edison Co.
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'(Three Mile Island, Unit 1), LBP, 14 NRC (1981)).
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Written comments and oral arguments on the question of the effect of that management decision ort the Commission's immediately effective
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shutdown order were. presented to the Comnission in accordance with
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s the Commission's Order of fugus'. 20,'1981 (CLI-81-19, 14 NRC 1
as
, j 1981)).
In an Order dated September _19,1981, the Licensing Board
. Yeopened the record on canagement-issues to: consider allegations of t
t s ~ cheating ory operator licen' sing exanipations and any impact such f
ch' eating may, have,orgthe Board's previously expressed management
' findings and to develhp' a record'fot findings on the still e
unresolved canagement-related issue of operator testing and
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. hether that Licensing Board decision should be made w
fmmediately effective if the decision is favorable to restart;
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Y (2) 'whether the Commission should defer its decision on restart 7
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LP ' r On Decemberf14, 1981, the Licensing Board issued a Partial Initial Decision (PID)2/. on hardware / design, emergency planning and unit 3
4s separation issues.. In that decision, the Licensing Board resolved the h
' ssues considered in a manner favorable to restart of TMI-1, conditioned i
J j'4 ',upon the satisfaction of a number of prerequisites to restart and upon the limitation of operation of-the facility to no more than five percent of design power pen' ding the issuance by the Licensing Board of a decision on the reopened hearing on operator cheating.
In a subsequent order issued on January 11, 1982, the Commission granted several motions for extensions of' time to file comments on immediate effe(tiveness, requiring such comments by January 28, 1982, but
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directed that comments' on its second question--whether the Coanission should defer its decisio'n on restart until the Licensing Board issues its opinion on the implications of the operator cheating incidents--be filed on January 13, 1982.
Pursuant to the Commission's Order, the NRC Staff's (Staff,) position on whether the Commission should defer its decision on i;
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Metropolitan Edison Company (Three Nile Island Nuclear Station, Unit f
l.),LBP, 14 NRC (1981) (Partial Initial Decision on
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3 Plant Design and Prdcedures, Separation Issues and Emergency PlanningIssues).
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restart is set forth below.
It is the Staff's view that, upon a finding
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j that the concerns which prompted the Commission's imediately effective shutdown order have been resolved, the Comission can and should consider and rule on whether to lift that shutdown order, that the Licensing Board's initial decisions provide a basis for finding that the Commission's management-related concerns have been resolved to a degree sufficient to permit limited operation of TMI-1 now provided, of course, that the Commission's other concerns, related to plant design, unit separation, and emergency planning, are shown to have been adequately resolved,E and that the pendency of the reopened hearings on cheating is not a bar to the Commission's now considering and ruling on whether to permit TMI-1 restart.
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Prior to lifting its immediately effective shutdown order, the Commission must determine that the concerns which prompted it to issue that order have been adequately resolved.
Those concerns relate not only to Licensee management competence but also to matters involving plant design and procedures, unit separation and emergency planning.
See Commission Order of August 9,1979, CLI-79-8, 10 NRC 141 at 142-144.
The Comission has afforded all parties the opportunity to express their views, in their immediate effectiveness comments to be filed on January 28, 1982, as to whether those other Commission concerns which provided the basis for the immediately effective shutdown order have been adequately resolved.
In the discussion which follows on whether the Commission should defer its decision on restart until issuance of a Licensing Board decision on operator cheating, it has been assumed, arguendo, that the Comission will determine, based at the Licensing Board's August 27 and December 14, 1981 decisions and on a consideration of the parties' immediate effectiveness conments, that its concerns regarding plant design and procedures, unit separation and emergency planning have been adequately reau'ved.
II.
DISCUSSION A.
To Authorize Restart, the Commission Must Find That Those Concerns Khich Prompted Its Immediately Effective Shutdown Order Have Been Satisfactorily Resolved In response to the accident at Three Mile Island, Unit 2 in March, 1979, the Commission issued an Order on July 2,1979 in which it stated that it lacked the requisite reasonable assurance that TMI-1, a reactor of design similar to that of TMI-2, could be operated without endangering the public health and safety.
Accordingly, the Commission directed that TMI-1 remain in a shutdown condition until further order of the Commission and that a hearing be conducted prior to any restart of the facility.
The July 2,1979 Order was made immediately effective.
On August 9, 1979, the Commission issued an Order and Notice of Hearing / in which it specified the basis for the concerns regarding the S
operation of TMI-1 that prompted it to issue its immediately effective shutdown order.
The Commission's Order of August 9,1979 justified immediate suspension of the TMI-1 Licensee's authority to operate 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's rules and regulations in 10 CFR (CLI-79-8,10 NRC 141,146).
Section 181 of the Atomic Energy Act makes the provisions of the Administrative Procedure Act (APA) (5 U.S.C. s 551 et seq.) applicable to NRC actions.
In turn, Section 9(b) of the APA provides specific 4/
limitations on what enforcement actions an agency may take with respect to licensees. Since the current restart proceeding is, by the very terms of the August 9,1979 Order, a proceeding to determine whether or not the suspension of the previously existing license authority should be terminated,E it is an enforcement proceeding to which Section 9(b) of the APA applies.
Section 9(b) of the APA requires an agency to give a licensee an opportunity to change its conduct before its license authority can be suspended or revoked unless, inter alia, the public health, interest or safety require otherwise. Thus, when a situation occurs in which immediate suspension or revocation of license authority is necessary in the public interest, an agency may immediately suspend or revoke license authority regardless of the equities or injuts to the licensee, llowever, the immediate suspension of a license without affording the licensee an opportunity for a prior hearing is an extraordinary agency action which is justified only so long as the facts supportir.o that action exist. When the situation changes, the agency should, and arguably must, summarily 1ift the suspension and restore the original rights under the license.N In the instant proceeding, then, the Commission must ultimately determine, based on the Licensing Board's partial initial decisions, whether the concerns which prompted its original immediate suspension order of August,1979, justify a continuation of that suspension. 'If they do not, and the Commission therefore 5/
CL1-79-8, 10 flRC 141, 149 (1979).
pf See florthwest Airlines v. CAB, 5?9 F.2d 748 (D.C. Cir.1978).
See also ICC v. Oregon Pacific Industries, Inc., 420 U.S.184 (1975)
(concurring opinion of Justice Powell).
i i can no longer find that the 'public health, safety and interest' mandates the suspension, then the Commission is required by law -- whatever the nature of the Licensing Board's-
' decision -- to lift that suspension immediately.
CLI-81-34, 14 fiRC (1981), slip op. at 2.
Consequently, the critical question for the Commission's ultimate consideration relative to permitting restart is whether the resolution of s
the issues in the partial initial decisions removes the "public health, safety or interest" concerns which formed the basis for the immediate effectiveness of the TMI-1 license suspension.
CLI-79-8,10 flRC at 149.
This question, insofar as it relates to the Commission's concerns regarding plant design and procedures, unit separation and emergency r
planning will be addressed in the Staff's immediate effectiveness comments to be filed on January 28, 1982.
The question as it specifically relates -to management concerns is addressed below.
B.
The Licensing Board's Partial Initial Decisions Resolve Manaaement-Related Concerns at least to a Degree Sufficient to Allow THI-1 Restart and Limited Operation Now As previously indicated, on August 27, 1981, the Licensing Board issued its first Partial Initial Decision relating to Licensee management capability and technical resource issues in which it resolved such issues in a manner favorable to operation of THI-1 with the exception of a subissue on operator license examinations as to which it retained jurisdiction. Written comments and oral arguments on the question of immediate effectiveness as related to that management decision were presented to the Commission by all interested parties.
As indicated by the Staf f in its previous presentations to the Commission, it is the Staff's view that, with the exception of the operator testing subissue on which the Board has not yet reached
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conclusions, the original concerns regarding operator error and management competence in connection with the TMI-2 accident which, in part, prompted the Commission's immediately effective shutdown order have been satisfactorily resolved.U However, as noted throughout its management decision of August 27, 1981,8f the adequacy of the Licensee's retraining program and of the Licensee's and Staff's testing programs has been brought into question by the implications of cheating on the April 1981 IIRC operator examinations and the possible defeatability of the purpose of f1RC and Licensee-administered examinations.
In addition, a number of the Licensing Board's findings favorable to restart with regard to plant design and procedure concerns set forth in the Licensing Board's December 14, 1981 partial initial decision are viewed by the Board to be heavily dependent upon correct operator procedures and upon operators whose competence has been ensured by appropriate training and verified by f1RC and Licensee-administered examinations. /
7f liRC Staff Coonents on Immediate Effectiveness With Respect to Licensing Board Decision on fianagement Competence / Operator Training, September 11,1981, p.10; ilRC Staff Reply to Comments on Immediate Effectiveness Uith Respect to Licensing Board Decision on fianagement Competence / Operator Training, September 28, 1981, pp. 22-23.
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See particularly Partial Initial Decision (Procedural Background and llanagement Issues), August 27, 1981, 55 204-07, 268-72, 584.c.
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See Partial Initial Decision (Plant Design and Procedures, Separation Issues and Emergency Planning Issues), December 14, 1981, 52017.
Because the operator training and testing issue remains unresolved, it cannot be said that all of the management-related concerns which prompted the Commission to issue its immediately effective shutdown order for TMI-1 have been fully and finally resolved.
Nevertheless, the Licensing Board has explicitly considered the implications of unresolved operator training and testing issues for the determinations on other TMI-1 restart issues.
Based on that consideration, the Licensing Board unanimously determined that the pendency of the unresolved operator training and testing issues should not be a bar to the restart of TMI-1 and the short-term operation of that facility at up to five percent of design power,1S/ provided that the staffing, training and testing license conditions set out in paragraph 583 of the August 1.7, 1981 partial initial decision on management issues are enforced.31/
In effect, then, the determination has been made that, with the catisfaction of identified conditions, those management-related concerns which prompted the Commission's immediately effective shutdown order, other than the operator training and testing concerns, have been satisfactorily resolved and that the operator training and testing concerns have been resolved to a degree sufficient to allow restart and operation up to five percent of design power.
In the Staff's view, this determination allows the Commission to consider now whether to lift its immediately effective 10/ The Licensing Board found that operation at no more than five percent of design power level would essentially eliminate the possiblity of accidents having serious consequences for the public health and safety.
PID, December 14, 1981, 12021.
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Id., 12023.
shutdown order so as to authorize TMI-1 restart and operation at up to five percent power (assuming, arguendo, that the Comdission's plant design / procedure, unit separation and emergency planning concerns are shown to have been resolved and contingent, of course, upon the satisfaction of those of the prerequisites to restart recommended by the Licensing Board in its partial initial decisior.s that are adopted by the Connission after consideration of the parties' comments) without awaiting the issuance of the Licensing Board's decision on the implications of operator cheating and on operator training and testing.
C.
The Pendency of the Reopened Hearino on Operator Cheating is Not, Itself, a Bar to Authorizing TMI-1 Restart and Limited Operation The fact that the hearing process on the natters of cheating and operator training and testing has not yet been completed does not preclude the Commission from now lifting its immediately effective shutdown order and does not require that the Commission defer its decision on immediate effectiveness until the Licensing Board issues its remaining decision.
In similar circumstances following the TMI-2 accident, the Commission issued an immediately effective shutdown order for the Rancho Seco facility because of similaritics between that facility and TMI-2.
Notwithstanding the fact that two petitions were received requesting hearings and questioning whether Rancho Seco could be safety operated, the Commission lifted the immediate suspension of the license while permitting the hearing to continue, concluding that prior hearings were not compelled by law.
Sacramento !!unicipal Utility District (Rancho Seco Nuclear Generating Station), CLI-79-7, 9 NRC 680, 681 (1979). The Commission's action in this regard, when challenged in the U.S. Court of Appeals, was found not to be "... arbitrary, capricious, e
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l 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).
The Commission similarly lif ted the suspension of a license despite the existence of an outstanding request for hearing in Toledo Edison Co.,
et al. (Davis-Besse, Unit 1), Docket No. 50-346, Order dated July 6, 1979.
See also Consumers Power Co. (Midland Plant, Units 1 & 2),
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CLI-73-38, 6 AEC 1082, 1083 (1973).
Thus, the pendency of the reopened hearing on cheating does not constitute a legal bar to the Commission's now considering and ruling on whether the immediately effective shutdown order for TMI-1 should be lifted.
j In view of the fact that the pendency of the reopened hearing on i-cheating is not a legal bar to the Cownission's now considering and ruling on whether the immediately effective shutdown order should be lifted and of the fact that the Licensing Board has determined that management-related concerns have been resolved to a degree sufficient to allow operation at up to five percent of design power despite the i
pendency of the reopened hearing, it is the Staff's position that the Commission need not and should not defer its decision on restart and operation up to five percent of design power until the Licensing Board j
issues its opinion on the implications of operator cheating.
I III.
CONCLUSI0'N In conclusion, it is the Staff's view that:
(1) the pendency of the reopened hearing on cheating is not a legal bar to the Commission's now considering and ruling on whether
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the innediately effective shutdown order for TMI-1 should be lifted; and i
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(2) the concerns regarding operator training and testing which formed the basis, in part, for the Cormnission's imraediately effective shutdown order, although not fully resolved, have
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been resolved to a degree which would allow operation of THI-1 up to five percent power prior to the issuance of the Licensing Board's decision on the iaplications of the operator cheating incidents.
The Commission, therefore, need not and should not defer its decision on restart until the Licensing Board has issued its decision on the implications of the cheating incidents.
Respectfully submitted, 7 ou L ~. c- -
s James M. Cutchin IV Counsel for (1RC Staff 9
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Joseply'?R.l Gray (6unsbl for ilR Sta,f Dated at Bethesda, Itaryland this 13th day of January 1982.
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