ML20066C311
| ML20066C311 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 11/04/1982 |
| From: | Weiss E HARMON & WEISS, UNION OF CONCERNED SCIENTISTS |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8211090453 | |
| Download: ML20066C311 (9) | |
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j DOCKETED USHRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'82 NOV ~5 P4:12 BEFORE THE COMMISSION c:FIM OF SECMTARY
!KTH.M'i & SERVICE l'?AtlCH In the Matter of
)
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METROFOLITAN EDIS0N COMFANY
)
Docket No. 50-289
)
(Restart)
(Three Mile Island Nuclear
)
Station, Unit No.1)
)
4 UNION OF CONCERNED SCIENTISTS OBJECTION TO EX PARTE COMMUNICATIONS On October 6, 1982, the Commission held a meeting with the NRC Staff to discuss what the Staff characterized as a briefing on "TMI-1 Status."
During the course of this meeting, a great deal of information and technical opinion dealing directly with substantive issues which are in controversy in the TMI-1 Restart proceeding was communicated from the NRC Staff, which is a party to that proc'eeding, to the Commissioners, who will make the final determination of the issues.
In the course of this meeting, it was revealed publicly for the first time, to our knowledge, that the Staff has been _ routinely engaging in ex parte communications with the Licensing Board, Appeal Board and Commissioners by sending them lengthy discussions of technical issues related to TMI-1 without serving those on the parties.
We refer here specifically to:
- 1) SECY-82-384, September 16, 1982, "Three Mile Island, Unit 1 (TMI-1)
NUREC-0737 Items Status," which in reality is not a status report, but proposes and purports to present justification for delay of implementation of required safety improvements until after restart of TMI-1; and 2) SECY-82-111, March 11, 1982, " Requirements fo r Emergency Response Capability" which 1
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requests Commission approval of emergency planning requirements. /
There are also follow-up documents to SECY-82-111 (i.e., SECY-82_111A, 111B, etc.) which UCS has still not been able to obtain because they are not in the PDR and our request to NRC Staff Counsel for their production has been fruitless -- so UCS is unable to comment on their content.
There may well be other SECY documents which have been served on the Boards and the Commission, but not the parties.
We have no reason to conclude that the two which happened to be referenced and discussed on October 6 are the only ones that exist.
The Commission meeting and the SECY documents ~ dealt directly with contested issues in the TMI-1 Restart proceeding.
Moreover, the Staff discussed facts and presented opinion, in an effort to convince the Commission that the plant is safe for restart, which go far beyond what was presented on the record and are in important ways inconsistent with the record.
The law is clear that off the record briefings by one party to a decision-maker in an ad,iudicatory proceeding concerning matters in issue at that proceeding constitute improper ex parte contacts, forbidden by the Administrative Procedure Act and NRC regulations.
The APA states flatly that decision-makers in adjudicatory proceedings "may not consult a person or party on a fact in issue, unless on notice and opportunity for all parties to participate."
5 U.S.C. Section 554(d)(1).
Moreover, the staff "may not, in that or a factually related case,... advise in the decision...except as witness er counsel in public proceedings."
Id In addition, in the section reciting the rules governing adjudicatory proceedings, the APA repeats its prohibition against parties an.1 decision-makers engaging in ex parte contacts concerning the merits of an ongoing proceeding.
5 U.S.C. Section 557(d)(1)( A), (B). The
- / While UCS has not raised emergency planning contentions in the Restart hearings, many other parties did.
section goes on to require that any ex parte contacts be placed in the public record, and initiate a further proceeding on the remedy to mitigate, if possible, prejudice to other parties.
5 U.S.C.
Section-557(d)(1)(C), (D).
NRC regulations restate these prohibitions and remedies at 10 C.F.R. Section 2 780.
In U. S. Lines v. Federal Maritime Commission (FMC), 584 F.2d 519, 539
( D.C. Cir. 1978), the court noted the numerous cases holding that ex parte contacts were inconsistent with the " notion of a fair hearing and with the principles of fairness implicit in due process."- Furthe rmore, the court held that ex parte contacts " foreclose effective judicial review of an agency's final decision."
Id. at 541.
Citing from the same court's decision in llome Box Office v. FCC, 567 F.2d 9 (D. C. Cir. 1977), cert. den. 434 U.S. 829, the court explained:
[H]ere agency secrecy stands between us and fulfillment of our obligation. As a practical matter, Overton Park's nandate means that the public record must reflect what representations were made to an agency so that relevant information supporting or refuting those representations may be brought to the attention of the reviewing ' courts by persons participating in agency proceedings.
This
- course is obviously foreclosed if communications are made to the agency in secret and the agency itself does not disclose the information presented. 567 F.2d at 54 H. at 541, citing.567 F.2d at 54.
l I
In U.S. Lines, the FMC staff communicating to the Commission an analysis of issues before it.
The court found these communications to be improper er parte contacts, in that they " introduced new arguments and positions and responded to and rebutted the arguments which protestant USL made in its public findings."
Id. at 538.
The court therefore set aside the agency decision and remanded the case to the Commission for new proceedings..
Id.-at 543.-
Similarly, see National Small Shipments Traffic Conference v. ICC, 590 F.2d 345 (D.C. Cir. 1978).
In this case, the Staff has labeled its communications to the Commission
" status" reports, in an attempt to fall under the exception for such ' reports under 5 U.S.C. Section 551(14) and 10 C.F.R. Section 2.780(d)(3).
- However, the content of the Staff's briefing goes far beyond permissible status reports, and encompasses positions and arguments on controverted issues involved in the proceedings before the Commission and the Appeal Board.
For example, the Staff briefed the Commission on the plant shielding modifications required to ensure that vital plant systems and equipment will not be unduly degraded by the high levels of radiation that will result during a TMI-2 type accident.
This was item 2.1.6.b of NUREG-0578 required by the Commission to be completed by January 1, 1981 and recodified as item II.B.2 of NUREG-0737 with the deadline extended to January 1,
1982.
This issue was litigated as part of UCS Contention 2 and Board Question /UCS Contention 12 and was addressed in the Initial Decision of December 14, 1981 at, for example, -
paragraph 628.
The Board resolved the UCS Contention by relying on the Staff's assertion that the plant shielding modifications would be completed by January 1, 1982, to meet the requirements of Item II.B.2 of NUREG-0737
- PID, at Paragraph 628, n. 72.
The matter is also the subject of pleadings before the Appeal Board.
See " Union of Concerned Scientists' Reply to Staff and Licensee Responses to Appeal Board Order of July 14, 1982" (August ~ 25, 1982) at 4-5 Nevertheless, on October 6, 1982, the Staff discussed the substance of this issue and indicated that the Commission should consider further delay in the deadline until after restart.
In so doing, the Staff presented a very_
different picture from _that presented to the ASLB on the record.-
In particular, before the ' ASLB, the Staff Itestified that all plant shielding modifications necessary to resolve NUREG-0737 Item II.B.2'must be completed by n
m
- January 1, 1982, and that reasonable progress had been made to ensure meeting that deadline.
Staff Exhibit 14 at 36.
Now it is revealed that valves which must be replaced had not even been ordered until September and October, 1982 and that the control panel for these valves has not yet been ordered.
SECY-82-384, Enclosure 2 at 2.
This means either that the, scope of the task was misunderstood during the hearing or that the Staff's " reasonable progress" conclusion was based on nothing.
Id,. at 1-2.
In addition, it may well be that the scope of modifications necessary to implement the requirements of NUREG-0737 Item II.B.2 is substantially greater than "only one concern" involving two motor control centers.
Partial Initial Decision, Dec. 14, 1981, para. 628.
The vagueness of the Staff SER makes this impossible to discern but -it is an area which UCS believes requires probing and which we would explore if given the opportunity, as we request herein.
These matters are not simply questions of " scheduling."
The condition of the plant at restart is fundamental to a determination of whether it is safe enough to operate -- the central issue which was presented to the ASLB.
On this score, Intervenors and the ASLB had no choice but to accept the Staf f's characterization of its own " requirements."
Moreover, parties l
l accepted as the starting point of this litigation that the " requirements" l
l would be enforced.
If the requirements are changed after litigation, it undermines the basis for the ASLB decision and deprives Intervenors of any opportunity to challenge the sufficiency of the new, less stric t requirements or whether reasonable progress has been made.
In this regard, we further find it inconceivable that as excuses for failing to complete the plant shielding modifications, you are told by your Staff that GPU has " financial constraints," SECY-382, Enclosure 2 at 2, and that it has been delayed by diversion of manpower and resources to the steam
generator repair. _Id.
If CPU has financial constraints which hinder it from ordering 6 valves and a control panel, it has no business operating nuclear facilities.
In addition, we find it exceedingly difficult to believe that the 1.
disciplines involved in addressing the steam generator problem have substantial overlap with those required to complete the plant shielding modifications.
These are weak excuses, indeed, and herdly provide a basis for further delaying implementation of a basic safety requirement that has already been delayed for almost two years.
The Commission is now in the process of determining whether the ASLB decision should be made immediately effective.
The ASLB decision was, in turn, based in this area upon a finding that the plant shielding modifications necessary to protect plant personnel and vital equipment from high radiation would be complete by January 1, 1982.
The information conveyed to you by the Staff is so at odds with what it presented to the ASLB that the ASLB decision 5
is no longer valid on this point.
Therefore, the Commission must either itself hold an evidentiary session on this point, allowing all parties to participate, or remand the matter to the Licensing or Appeal Board.
UCS so moves the Commission.
The Commission may not rely only on the untested i
assertions of one party to this case (which are, in large part based on Licensee's equally untested assertions) to resolve matters in controversy or to alter the deadlines for plant modifications.
Finally, UCS objects to this pattern of ex parte communication between the Staff and the Commission.
We assert our right to present evidence and to cross-examine Staff witnesses on issues concerning the safety of TMI-1.
We move that any future consideration by the Commission of such questions be done in accordance with the procedural rules set out in 10 CFR Part 2, Subpart G.
i
-y Respectfully cubmitted, Ellyn R. Weiss Counsel for UCS Harmon & Weiss 1725 I Street, N.W.
Suite 506 Wachington, D.C. 20006
/
(202) 833-9070 Dated: November 4,1982 t
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I hereby certify that copies of the forecoing UNION OF CONCERNED SCIENTISTS OBJECTION TO EX PARTE CD MUNICATIONS, have been delivered this 5th day of November, 1982, first-class, postage paid, to the following :
lvan W.
Smith, thattman
.fudqe John 11. Buck Atomic Safety and Licensing Atomic Safe:ty and Licens Board Panel A11 cal isoard Panel t.
S. Nuclear Regulatory U. S. fluclear Rcqulatory Commission Comm i :m i o n Washington, D.C. 20555 Wash a rviton D.C. 20555 Dr. Waltes 11. Jordan
. fudge Christine N. t(ohl Atomic Safety and Licensing Atomic Safety anct LicenC Boar d Panel Appealiksard Panel nal West Outer Drtve ti.S. tinet t ar Itequlatory Oak Ridge. Tennessee 37030 Comminston Washityton, D.C. 20555 Dr. Linda W. Little Atomic Safety and Licensing Thoman Itoberts, Commissi Board Panel 11.5. thicie.ir itegu latory 5000 itermitage Drive Cormission H.il eig h, North Carolina 27bl2 Wash i ng ton,
D.C.
20555 Professor Gary L. Hilhollin Nunzio.Pulla<linu, ChairE 11115 Je f f erson Strt et t i. :;. tauclear itegula t ory nadison, Wisconsin 53711 Comminaton Washing ton, D.C. 20555 Judge Gary J. Edles, Ch air m an Atomic Safety and Licensing Mrs. Har joric Aamodt Appoal Board R.D. 45 U.S. Nuclear Regulatory Co a l s v i l l e, iennsylvan1C Commission w.is h i ng t on, D.C. 20555 l
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i Robert Adler, I:sq..
Assistant Attorney General 505 Executive !!ouse P.O. Box 2357 Itarrisburg, 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, Eng.
Smith & Smith, P.C.
2931 North Front Street liar risburg, PA 17110 Jordan D. Cunningham, r,sq.
Counsol for NRC Staff Fox, Farr & Cunningham Office of Executive Legal 2320 North Second Street Director liarrisburg, PA 17110 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 George F. Trowbridge, Esq.
Shaw, Pittman, Potts &
Trowbridge i
1800 M Street, N.W.
Dr. Judith H. Johnsrud Washington, D.C.
20036 Dr. Chauncey Kepford Environmental Coalition on Docketing and Service Section i
Nuclear Power Of fice of the Secretary 433 Orlando Avenue U.S. Nuclear Regulatory State College, PA 16801 Commission Judge Reginald L. Gotchy Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Victor Gilinsky, Commissioner John A.
Levin, Esq.
U.S. NRC l
Assistant Counsel Washington, D.C.
20555 Pennsylvania Public Utility Commission James Asseletine, Commissioner 1
P.O. Box 3265 U.
S. NRC Harrisburg, Pennsylvania 17120 Washington, D.C.
20555 John Ahearne Commissioner c
U. S. N RC Washington, D.C.
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Mr. llenry 11 Iluk i l i Vice President GPU Nuclear Corporation P. O.
Ilox 480 Middletown, PA 17057 Ellyn Weiss
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