ML20054H841

Answer Opposing People Against Nuclear Energy 820603 Request for Hearing on License Amends & Conditions Required Prior to Restart.Unnecessary to Decide Whether Hearing Required Since Hearing Already Held.Certificate of Svc Encl

ML20054H841
Person / Time
Site:	Three Mile Island
Issue date:	06/23/1982
From:	Goldberg J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC COMMISSION (OCM)
References
NUDOCS 8206250053
Download: ML20054H841 (10)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

\

BEFORE THE COMMISSION l' In the Matter of )

METROPOLITAN EDIS0N COMPANY, ET AL. Docket No. 50-289

) (Restart)

(Three Mile Island, Unit 1) )

NRC STAFF'S ANSWER TO PEOPLE AGAINST NUCLEAR ENERGY REQUEST FOR HEARING ON LICENSE AMEN 0MENTS AND CONDITIONS REQUIRED PRIOR TO RESTART OF TMI-1

,' Jack R. Goldberg Counsel for NRC Staff June 23, 1982 f

l l

DESIGNATED ORIGINAL

~ ~ ~

camrified BY_ ~

F206250053 820623 PDR ADOCK 05000289 PDR 0

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

- In the Matter of )

METROPOLITAN EDISON COMPANY, ET AL. Docket No. 50-289

- ) (Restart)

(Three Mile Island, Unit 1) )

NRC STAFF'S ANSWER TO PEOPLE AGAINST NUCLEAR ENERGY REQUEST FOR HEARING ON LICENSE AMENDMENTS AND CONDITIONS REQUIRED PRIOR TO RESTART OF TMI-1

'- Jack R. Goldberg

- Counsel for NRC Staff June 23, 1982 i

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

. In the Matter of METROPOLITAN EDIS0N COMPANY, ET AL. Docket No. 50-289 (Restart)

(Three Mile Island, Unit 1) )

HRC STAFF'S ANSWER TO PEOPLE AGAINST NUCLEAR ENERGY REQUEST FOR HEARING ON LICENSE AMENDMENTS AND CONDITIONS REQUIRED PRIOR TO RESTART OF TMI-1

1. INTRODUCTION On May 24, 1982, Licensee's Motion with Respect to Psychological

~

Health Issue (Licensee's Motion) requested, inter alia, that if the Comission finds there exist significant new circumstances or information concerning the potential psychological health effects of operating TMI-1, then the Comission decide for itself the restart matter after completion of a supplemental EIS (SEIS) without further trial-type hearings. On June 3, 1982, People Against Nuclear Energy (PANE) responded to Licensee's Motion (PANE's Response) urgina that PANE has a right to an adjudicatory hearing prior to a final Comission decision on restart. The NRC Staff filed its answer to Licensee's Motion (Staff's Answer) on Juim 10, 1982 suggesting that it is premature to decide now the issues raised by Licensee's Motion. PANE's Response to Licensee's Motion was accompanied by a separate request.for hearing prior to restart in which PANE asserts prior adjudicatory hearing rights under section 189(a) of the Atomic

Energy Act on all license amendments, conditions, or modifications arising out of the restart hearing, specifically including the psycho-logical health effects and comunity impact that could be caused by restart. For the reasons set forth below, the Staff opposes PANE's request.

, II. DISCUSSION

. PANE argues that under section 189(a) of the Atomic Energy Act (Act) it is entitled to a prior adjudicatory hearing on any license modifications for TMI-1. PANE's Request at 1. PANE then states that if the restart proceeding is considered to be such a hearing, its hearing request is unnecessary. H. But, PANE argues, if the restart hearing is considered to have been entirely discretionary, then PANE has a right to a " separate" adjudicatory hearing under the Act prior to the implementation of the license amendments and modifications that will be the conditions of restart. M. PANE states that it expects to address in such a hearing the issue of the psychological health effects and community impact of restart, citing PANE v. NRC, No. 81-1131 (D.C.

Cir. , May 14,1982) and referencing its original petition to intervene and contentions in the restart proceeding and the Licensing Board's ruling that PANE has satisfied the NRC's standing requirements. See

. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1),

LBP-79-34, 10 NRC 828, 850 (1979).

On the one hand, PANE admits that if the Comission considers the restart proceedjng as the adjudicatory hearing assertedly required by the Atomic Energy Act on the various license amendments relating to restart, then its hearing request "is unnecesssj." PANE's Request at 2.

This is so, PANE submits, because the restart hearing will be "the existing agency review process in which NEPA issues are considered."I/ -

Id. On the other hand, PANE argues that if the Commission considers the restart proceeding to be entirely discretionary, then it is entitled under the Act to a " separate hearing" on the license amendments prior to their implementation. Id.

While the Staff cannot agree with PANE's assertion that the restart hearing is the " existing agency review process in which NEPA issues are considered" (see SCRAP II, supra, n.1), we nevertheless would agree that if, as PANE argues, PANE is entitled by section 189(a) of the Act to a hearing on TMI-1 license amendments, such a hearing already has been held and, as PANE recogn'.izes, need not be duplicated. PANE's Request at 3. It is therefore not necessary to decide whether a hearing

-1/ PANE seeks " recognition of the fact that since the Atomic Energy Act requires hearings, if requested, with respect to proposed license amendments, such hearings constitute the ' existing agency review process' for NEPA purposes." PANE Request at 3. In Aberdeen &

Rockfish Railroad Co. v. Students Challenging Regulatory Agency Procedures, 422 U.S. 289 (1975) (SCRAP II), the Supreme Court held that an EIS is not required by NEPA until such time as there is an agency proposal for action, notwithstanding agency hearings held prior to the agency proposal. 422 U.S. at 320-21. This hold-ing did not depend on whether such prior hearings were required by statute or were merely discretionary. Thus, under SCRAP II, it is the agency proposal for action, rather than the mere holding of a hearing, which triggers the need to consider an environmental impact statement. Therefore, agency hearings which precede agency proposals cannot be the " existing agency review process" through which NEPA. requires the EIS to accompany the agency proposal for the simple reason that, by hypothesis, there is no agency proposal at the time of such hearings. It follows that the restart hearings, whether or not required by the Atomic Energy Act, are not the

" existing agency review process" for NEPA purposes if they precede the agency's proposal for action on restart.

cr. such amendments is required by section 189(a) of the Act since, in any event, such a hearing has been held.

The real issue presented by PANE's Request, however, is whether PANE is entitled to an " adjudicatory hearing" in which PANE can litigate the potential psychological health effects of restarting TMI-1. PANE's Response at 22; PANE's Request at 2-3. This issue, of course, was raised by the Licensee's Motion to which both PANE and the NRC Staff responded.E At the outset it is important to recognize that the Atomic Energy Act does not require that any kind of hearing be held on the potential psychological health effects of restarting TMI-1. Indeed, psychological health is not even cognizable,under the Atomic Energy Act. PANE v. NRC, ,

supra, affirming Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-82-6 (March 30, 1982). Therefore whether or not PANE is entitled to litigate psychological health effects in an adjudicatory hearing is an issue under NEPA, not the Atomic Energy Act.

With respect to the question of whether NEPA requires a hearing, in the context of this restart proceeding, on the psychological health effects of operating TMI-1, the Staff pointed out in its Answer to Licensee's Motion that that question is a difficult one which should not be determined now in the absence of a detern.ination on the need for d supplemental EIS. See Staff's Answer at 4-9, 13-14. The Staff further pointed out that when that issue is ripe for resolution, there 2_/

On June 7, 1982, TMIA served an untimely answer (dated June 3, 1982) to Licensee's Motion.

may be options available to the Commission, other than adjudicatory hearings before a licensing board, which could be fashioned to provide pat 4E its opportunity under NRC regulations to "take a position and offer evidence on" psychological health effects. Staff's Answer at 14, citing 10 CFR $ 51.52.

For the above reasons, as well as for all the reasons set forth in Staff's Answer to Licensee's Motion with Respect to Psychological Health Issue, the Staff believes it is not necessary to decide at this time whether PAf;E should be granted a hearing on the potential psychological health effects of operating THI-1.

III. CONCLUSION For the reasons set forth above, the Staff believes that the Commission should not decide now whether to grant PANE's request for a hearing on psychological health.

Respectfully submitted, k I

/ackR.Goldberg Counsel for NRC Staff '.

Dated at Bethesda, Maryland this 23rd day of June, 1982.

l l .

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

. In the Matter of METROPOLITAN EDIS0N COMPANY, ET AL.) Docket No. 50-289

. ) (Restart)

(Three Mile Island, Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S ANSWER TO PEOPLE AGAINST NUCLEAR ENERGY REQUEST FOR HEARING ON LICENSE AMENDMENTS AND CONDITIONS REQUIRED PRIOR TO RESTART OF TMI-1" 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, by deposit in the Nuclear Regulatory Comission's internal mail system, this 23rd day of June,1982:

• Samuel J. Chilk (12) Dr. Linda W. Little Secretary of the Comission Administrative Judge U.S. Nuclear Regulatory Comission 5000 Hermitage Drive Washington, DC 20555 Raleigh, North Carolina 27612

• Leonard Bickwit, General Counsel George F. Trowbridge, Esq.

U.S. Nuclear Regulatory Comission Shaw, Pittman, Potts & Trowbridge Washington, DC 20555 1800 M Street, NW Washington, DC 20036

• Ivan W. Smith Administrative Judge Robert Adler, Esq.

Atomic Safety & Licensing Board Panel 505 Executive House U.S. Nuclear Regulatory Comission P. O. Box 2357 Washington, DC 20555 Harrisburg, PA 17120

- Dr. Walter H. Jordan Honorable Mark Cohen Administrative Judge 512 D-3 Main Capital Building 881 W. Outer Drive Harrisburg, PA 17120 Oak Ridge, Tennessee 37830 Ms. Marjorie Aamodt Gary L. Milhollin, Esq. R.D. #5 1815 Jefferson Street Coatesville, PA 19320 Madison, WI 53711 ... '

Mr. Thomas Gerusky

• Dr. John H. Buck Bureau of Radiation Protection Atomic Safety & Licensing Appeal .0ept. of Environmental Resources Board Panel P. O. Box 2063 U.S. Nuclear Regulatory Comission Harrisburg, PA 17120 Washington, DC 20555

Mr. Marvin I. Lewis William S. Jordan, III, Esq.

6504 Bradford Terrace Harmon & Weiss Philadelphia, PA 19149 1725 I Street, NW Suite 506 Mr. C. W. Smyth, Supervisor Washington, DC 20006 Licensing TMI-1 Three Mile Island Nuclear Station John Levin, Esq.

P. O. Box 480 Pennsylvania Public Utilities Comm.

Middletown, PA 17057 Box 3265 Harrisburg, PA 17120 Ms. Jane Lee R.D. 3; Box 3521 Jordan D. Cunningham, Esq.

Etters, PA 17319 Fox, Farr and Cunningham 2320 North 2nd Street Gail Phelps Harrisburg, PA 17110 ANGRY 245 W. Philadelphia Street Louise Bradford York, Pennsylvania 17401 Three Mile Island Alert 1011 Green Street Allen R. Carter, Chairman Harrisburg, PA 17102 Joint Legislative Comittee on Energy Post Office Box 142 Ms. Ellyn R. Weiss Suite 513 . Harmon & Weiss Senate Gressette Building 1725 I Street, NW Columbia, South Carolina 29202 Suite 506 Washington, DC 20006 Chauncey Kepford Judith Johnsrud Mr. Steven C. Sholly Environmental Coalition on Nuclear Power Union of Concerned Scientists 433 Orlando Avenue 1346 Connecticut Avenue, NW State College, PA 16801 Dupont Circle Building, Suite 1101 l Ms. Frieda Berryhill, Chairman l Coalition for Nuclear Power Plant

• Judge Gary J. Edles Postponement Atomic Safety & Licensing 2610 Grendon Drive Appeal Board Wilmington, Delaware 19808 U.S. Nuclear Regulatory Commission l

Washington, DC 20555 i Mr. Henry D. Hukill Vice President

• Judge Reginald L. Gotchy GPU Nuclear Corporation Atomic Safety & Licensing Post Office Box 480 Appeal Board Miadletown, PA 17057 U.S. Nuclear Regulatory Commission Washington, DC 20555

• Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 20555

• Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555 i

• Secretary U.S. Nuclear Regulatory Comission ATTN: Chief Docketing & Service Branch Washington, DC 20555

• Christine N. Kohl Atomic Safety & Licensing Appeal Board Panel U.S. Nuclear Regulatory Comission Washington, DC 20555

• Dr. Lawrence R. Quarles Atomic Safety & Licensing Appeal Board Panel U.S. Nuclear Regulatory Com.ission Washington, DC 20555 d

fjJackR.Goldberg

/ Counsel for NRC Staff e

.  ?

, r