ML20054L273

Reply to Licensee 820618 Response to People Against Nuclear Energy (Pane) 820603 Request for Hearing.Licensee Arguments Mischaracterize Situation.Pane Entitled to Hearing on License Amends.Certificate of Svc Encl

ML20054L273
Person / Time
Site:	Three Mile Island
Issue date:	07/01/1982
From:	Jordan W HARMON & WEISS, PEOPLE AGAINST NUCLEAR ENERGY
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20054L262	List: ML20054L261 ML20054L267 ML20054L273
References
NUDOCS 8207070330
Download: ML20054L273 (7)

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I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

~

In the Matter of )  :

)

• METROPOLITAN EDISON COMPANY ) Docket No. 50-289

) (Restart)

(Three Mile Island Nuclear )

Station, Unit No. 1) ) .

PEOPLE AGAINST NUCLEAR ENERGY REPLY TO LICENSEE'S RESPONSE TO PANE REQUEST FOR HEARING On June 3, 1982, People Against Nuclear Energy (PANE) filed a Request for Hearing on License Amendments and Conditions Required Prior to Restart of TMI-l. In its response of June 18, 1982, the Licensee made the following arguments:

1. PANE cannot " bootstrap a discretionary NRC hearing into a non-discretionary one by filing a hearing request after the hearing is completed."

2. There is no requirement for a hearing on the TMI-1 license amendments and conditions because they would simply increase safety, not allow any action different from those previously permitted, and because they do not involve a "significant hazards consideration."

3. The Sholly decision does not govern because the mandate has not yet been issued, and it involves different facts.

4. Indiscriminate extension of the Sholly decision .

l would hamper NRC ability to protect the public

, health and safety by delaying necessary license amendments.

l The Licensee's arguments are incorrect. PANE is entitled to a hearing on the license amendments.

t C207070330 B20702 PDR ADOCK 05000289 PDR 0

2 The Licensee's facile suggestion that PANE cannot

" bootstrap' a discretionary hearing into a non-discretionary hearing" is a mischaracterization of the situation. In reality, PANE is seeking recognition of the fact that the restart hearing is non-discretionary. At a minimum, the hearing became non-discretionary when the Licensing Board held that certain additional license conditions which are amendments to the license, would be required prior to restart. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1) ,

LBP-81-32, 14 NRC 381, 564, 578 (1981); Metropolitan Edison Co.

(Three Mile Island Nuclear Station, Unit No. 1) , Docket No.

50-289, " Memorandum and Order Modifying and Approving Staff's Plan of Implementation," filed April 5,1982. Far from seeking a bootstrapping, PANE is offering an efficient solution to the Commission's dilemma through treating the restart hearing itself as the one that is required by stacute.

Otherwise, an additional hearing would be necessary.

According to the Licensee, no hearing is required when a license amendment would simply permit actions that were previously allowed. Accepting the Licensee's characterization of the facts, there is no basis in law for this assertion.

The reasoning of Sholly v. Nuclear Regulatory Commission, 651 F. 2d 780 (D.C. Cir. 1980), cert. granted, 101 S. Ct.

3004 (1981), does not depend upon the fact that the krypton release had not previously been allowed, but on the fact that l

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3 a license amendment was needed to permit it at the time.

Under the Commission's and Board's orders, the same is true here. The Board rulings cited above are absolutely clear in holding that certain license amendments, in the form of license conditions, are required prior to restart being permitted. In any event, the Licensee is wrong about the facts. Post-accident operation is not the same as pre-accident operation at TMI.

In this connection, the Licensee also asserts that there is no significant hazards consideration here to trigger a hearing. There is no basis in the Board's orders or in any statements by the Staff or anyone else for that conclusion, even if it were true. In any event, Sholly renders the argument irrelevant.

The Licensee attempts to avoid Sholly by noting that the mandate has not yet been issued. However, the case remains valid precedent and valid law. Regardless of whether the j tandate has issued for the particular case, the Commission

nay not take any actions that would be illegal under the l

principles established by the D.C. Circuit. To deny a hearing here would be to take such an illegal action.

Finally, the Licensee's reference to indiscriminate I

extension of Sholly and potential harm to NRC protection of the public is without foundation. Whenever the NRC believes i

that a license amendment is necessary to protect the public health and safety, it can take the appropriate enforcement

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4 action to assure protection until the amendment is issued.

As the Licensee suggests, it can halt operation. It can also l

limit operation if need be. In addition, if there really l

l is a serious safety issue involved,' that is precisely when the public should have a right to a hearing to determine the adequacy of the action being taken.

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More importantly, the situation here is not comparable  ;

to that posited by the Licensee. There is no need to take immediate action here to protect the public health and safety, ,

1 and therefore no need to determine how the Sholly precedent '

would apply to that situation. There is no question that l

Sholly applies here. f The Licensee has failed to present any valid reason '

that PANE should be denied the hearing to which it is entitled.

Respectfully submitted,

^

William S. Jordan, III Date: July 1, 1982 Counsel for People Against Nuclear Energy HARMON & WEISS 1725 I Street, N.W.

Suite 506

, Washington, D.C. 20006 1

(202) 833-9070 .

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' liN ITl;ll :El ATMS ul' AHl:H l(*A ppet.1 AH Hl:GUI.ATORY COf tfil SS ION BEFORE Tlig AT0tt1C 4Al'HTY AND l I ri:Nn t NC. ISOARD In the Matter of I

)

- METROPOLITAN EDISON COhTANY ) l)oc k e t. No. 50-20')

) (les nt .sr i )

(Three Mlle Island Nuclear )

Station, Uni'. No. 1) )

CERTIFICATE OF SMHVICM I hereby certify that copies of the foregoing PEOPLE AGAINST NUCLEAR ENERGY MOTION FOR OPPORTUNITY TO REPLY TO LICENSEE RESPONSE TO PANE REQUEST FOR HEARING and the accompanying PEOPLE AGAINST NUCLEAR ENERGY REPLY TO LICENSEE'S REPONSE TO PANE REQUEST FOR HEARING have been delivered ~

this 1st day of July, 1982, first-class, postage paid, to the following:

• Ivan' N. Smith, Chairman Judge John H. Buck Atomic Safety and Licensing Atomic Safety and Licensing Doard Panel Appeal Board Panel l'. S. Nuclear Regulatory U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Commission Washington D.C. 20555

• Dr . Wal ter H. Jordan Judge Christine N. Kohl Atomic Safety and Licensing Atomic Safety and Licensing Board Panel AppealBoard Panel RH) West Outer Drive Oak Ridge , Tennessee 37830 U .S . Nucl ear Regula tory Commission .

Was hi ng to n , D.C. 20555

• Dr . Lind a W . Little Atomic Safety and Licensing Thomas Rober ts , Commissioner Board Panel U.S. Nuclear Regulatory 5000 Hermitage Drive Raleigh, North Carolina 27bl2 Commission Wash ing ton , D .C . 20555 ^

Professor Gary L. Milhollin Nunzio.Palladino, Chairman 1815 Jefferson Street Madison, Wisconsin 53711 ti .S . Nucicar Regulatory Commission Washington , D.C. 20555 Judge Gary J. Edles, Ch airm an Atomic Safety and Licensing Mrs. Marjorie Aamodt -

Appe al Board R.D. #5 U.S. Nuclear Regulatory Co al s vill e , Pennsylvania 1932 i Commission l

Wash i ng ton , D.C. 20555 '

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- Robert Adler, Esq. Mr. Marvin I. Tewis Assistant Attorney General 6504 Bradford Terrace 505 Executive House Philadelphia, PA 19149 P.O. Box 2357 Harrisburg, Pennsylvania 17120 ,

Louis Bradford Ms. Gail B. Phelps Three Mile Island Alert 245 West Philadelphia Street 325 Peffer Street York, Pennsylvania 17404 Harrisburg, PA 17102 David E. Cole, Esq.

Smith & Smith, P.C.

2931 North Front Street Harrisburg, PA 17110 Jordan D. Cunningham, Esq. Counsel for NRC Staf f l Fox, Farr & Cunningham Of fice of Executive Legal 2320 North Second Street Director i Harrisburg, PA 17110 U.S. Nuclear Regulatory ,

Commission Thomas J. Germaine, Esq. Washington, D.C. 20555 Deputy Attorney General ,

Division of Law - Room 316

• George F. Trowbridge, Esq.

1100 Raymond Boulevard Shaw, Pittman, Potts &

Newark, New Jersey 07102 Trowbridge 1800 M Street, N.W.

Dr. Judith H. Johnsrud Washington, D.C. 20036 Dr. Chauncey Kopford -

Environmental Coalition on Docketing and Service Section Nuclear Power Office of the Secretary 433 Orlando Avenue U.S. Nuclear Regulatory

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State College, PA 16801 Commission Washington, D.C. 20555 i Judge.Reginald L. Gotchy  :

Atomic Safety and Licensing .

Appeal Board Panel  !

U.S. Nuclear Regulatory i Commission  ;'

Washington, D.C. 20555 Victor Gilinsky, Commissioner John A. Levin, Esq. U.S. NRC Assistant Counsel Washington, D.C. 20555 Pennsylvania Public Utility -

Commission James Asselstine, Commissioner P.O. Box 3265 U. S. NRC Harrisburg, Pennsylvania 17120 ' Washington, D.C. 20555 John Ahearne, Commissioner U.S. NRC washington, D.C. 20555

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i Mr. Steve Brooks Michael l'. McIlr ide, I sq.

Public Information and f.eBoe u i , T.a m?i, s.e i by f. Macitae Resource Center 13 3 3 New Ilampr.h i re Avenue, fl.W.

1037 Maclay Street Suite 1100 llarrisburg, l'A 17103 H.ish i ng ton ,- 1).C. 20036 Mr. Ilenry D. Iluki ll Vice President GPU Nuclear Corporation P. O. Box 480 Middletown, PA 17057 . ,

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July 1,1982 W M , I / 2l T ~

William S. Jordan, III Hand-delivered by messenger ,

• • Express-mailed .

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