ML20080R575
| ML20080R575 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 02/23/1984 |
| From: | Baxter T GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8402280340 | |
| Download: ML20080R575 (10) | |
Text
T~
1 DOCKETED USNRC
'84 FEB 24 AlieMuary 23, 1984 UNITED STATES O M5@G5%If;.~
NUCLEAR REGULATORY TOMMI$$TpN'"'
4 BEFORE THE COMMISSION In the Matter of
)
)
GPU NUCLEAR CORPORATION
)
Docket No. 50-289
)
(Three Mile Island Nuclear Station,
)
Unit No. 1)
)
LICENSEE'S RESPONSE TO UCS LETTER OF FEBRUARY 13, 1984 TO THE COMMISSIONERS I.
INTRODUCTION On January 20, 1984, the. Union of Concerned Scientists
~(UCS) submitted to the Commission a petition seeking an order suspending the' operating license for TMI-1 "unless and until the plant's Emergency Feedwater System complies with the NRC rules applicable to systems important to safety.
Union of Concerned Scientists' Petition for Show Cause Concerning TMI-l Emergency Feedwater System (January 20, 1984) (herein-after UCS Petition).
Although 10 C.F.R. 5 2.206 requires that such a petition be submitted to the Director of Nuclear Reactor
_ Regulation (the Director), UCS asserted that:
8402280340 840223 PDR ADOCK 05000289 0
PDR nDSD3
. ~
w
&~
This petition is lodged with the Commission directly because the NRC staff has recommended restart of THI-l with full knowledge of the EFW deficiencies discussed herein and because the Commission now has under consideration action i
which would allow TMI-1 to operate by lifting I he "immediate effectiveness" of its orders of t
July and August, 2979.
UCS. Petition at 2.
This petition was subsequently, and quite properly, re-ferred'to the Director of Nuclear Reactor Regulation.
See Let-ter from Harold R. Denton, Director, Office of Nuclear Reactor i
Regulation, to-Ellyn R. Weiss (January 27, 1984).
More than two weeks later, UCS responded to the referral.
In a letter "to inquire by what means UCS' request that the Commis-sion:itself take jurisdiction'was denied," UcS renewed its at-tack on the NRC Staff, repeated its request that the Commission itself take jurisdiction of the petition, requested that the Commission direct the Staff to submit a response in writing
(
under oath or affirmation that addresses each of the issues identified in the UCS petition, and." recommended" a series of additional questions to be put to the Staff.1/
1/
These requests were located at the end of the UCS letter, i'
and-the letter contained no caption indicating that affirmative relief was being sought. - UCS' filing does not conform with ac-ceptable standards..See Duke Power Company (Cherokee Nuclear Station, Units 1, 2, & 3 ),
ALAB-457, 7 N.R.C.
70, 71 (1978).
2-J
'=.d a
maec'
=
m.-
ww ww
-c--w--w--
yp.
e, M e--myg.-,ye-,
.%-,,--q w e e,
.y ygp,, - -..,.
6 II.
THE UCS PETITION WAS PROPERLY REFERRED TO THE DIRECTOR Section'2.206 was added to the Commission's Rules of Prac-tice in 1974 (39 Fed. Reg. 12353 (1974)) to provide a procedure for submittal of requests for an order modifying, suspending, or revoking a license.
This section states, in mandatory lan-guage, "such a request shall be addressed to the Director of Nuclear Reactor Regulation, Director of Nuclear Material Safety and Safeguards, Director, Office of Inspection and Enforcement, as appropriate.
The statement of consideration adds:
Unless otherwise directed by the Commission, any request for modification, suspension or revoca-tion of a, license, or for other like action, will be referred to the Director of Reguletion 39 Fed. Reg. 12353 (1974).
The Commission has made it clear, therefore, that misaddressed 2.206 petitions will, as a matter
~
of course, be referred to the Director.
UCS has no right to have the Commission itself consider the petition.
UCS asserts the Commission's " inherent supervisory author-
-ity" to support its filing the petition with Commission.
UCS Petition at 1.
UCS cites no case, however, where the Commis-sion has exercised such authority to accept jurisdiction over a 2.206 petition in the first instance.
See UCS Petition at 1
.n.l.
Nevertheless, the Commission has indicated that in very rare cases it might accept a 2.206 petition and did so in Petition for Emergency and Remedial Action, CLI-78-6, 7 N.R.C.
400 (1978).
But the Commission added:.
y i
The Commission's election in this case to exer-cise its prerogative to rule on the petition rather than refer the matter to the Director, Office of Nuclear Reactor Regulation, is not in-tended to establish a precedent for circum-venting the procedure set forth in Section 2.206.
Sound allocation of Commission resources dictates that this inherent power be used sparingly.
Id. at 409 n.13.
The Commission's admonition is clear and is practical.
The NRC Staff is better equipped to make an initial evaluation of a 2.206 petition.
Petition for Emergency and Remedial Action was indeed an exception and was Egi generis.
It in-volved substantial generic safety issues, many of which were eventually resolved by rulemaking.
By contrast, the UCS Peti-tion raises issues it asserts to be specific to TMI Unit 1; and the questions that UCS recommends be asked the NRC Staff indi-cate that the Director is the official best suited to evaluate the petition.
Sound allocation of resources dictates that the UCS petition be referred to the Director.
In addition to sound allocation of resources, a second ra-tionale exists for vesting 2.206 authority in the Director --
separation of functions.
In Consolidated Edison Co. of New York (Indian Point, Units 1, 2 and 3), CLI-79-8, 2 N.R.C.
173 (1975), the Commission provided the following caveat:
[I]t is important to maintain so far as possible the separation between " prosecutorial" and
" quasi-judicial" functions within the Commis-sion, which our regulations establish by vesting in the Director the discretion to institute show cause proceedings.
And we note that Commission -.
t review of competing factual contentions at the threshold of a potential show cause proceeding poses difficulty for any subsequent Commission review of the outcome of resulting hearings.
Premature commitment on factual issues is espe-cially to be avoided.
Id. at 175.
In the instant case, UCS argues that the Commission should accept the UCS petition because the Commission is presently en-gaged in review of TMI-Restart decisions.
This argument is in-consistent with the separation of func,tions rationale for vest-1 ing 2.206 authority in the Staff.
That the Commission is presently exercising a quasi-judicial function with respect to TMI-1 is a strong reason against, rather than for, combining this function with the prosecutorial and investigative func-tions involved in evaluating a 2.206 petition.
Similarly, the possiblity that the UCS petition might result in another adju-dication which the Commission would later have to review is also a strong reason against the Commission's accepting the pe-tition; and the abrogation of the rule would threaten Licensee's due process rights.
UCS also argues that the Commission should accept the UCS l
petition because the Staff has already recommended restart.
But UCS itself notes that the Staff has circumscribed its con-clusions and has made a judgment only "with regard to the items l
covered by NUREG-0680 and its supplements."
UCS Petition at 2 n.2.
Aside from the fact that the UCS petition raises issues v
.o L
i
'outside.those considered by the Staff in the Restart proceed-ing,.suchLa " prejudgment" argument has been soundly rejected.
'Theiseminal' case.in th'is regard is Porter County Chapter v.
~
NRC, 606-T.2d 1363.(D.C. Cir. 1979), aff'q Northern Indiana Public Service Co.'(Bailly Generating Station, Nuclear-1),
~CLI-78-7, 7 N.R.C. 429, 432 (1978).
In that case,-the U.S.
Court of Appeals for the District of Columbia Circuit flatly rejected the-argument.that the Staff's participation in a prior proceeding and its advocation of po' sit' ions adverse to a peti-
-tioner precluded $t from deciding a 2.206 petition.
The Court stated:
The contention of. petitioners-is evocative of a monolithic assumption that once members of a staff have taken a position, (a) their view is forever fixed and (b) it.will infect other mem-bers of the agency with regulatory responsibil-ities.,As appears from Withrow v. Larkin, how-ever, there is a distinction between claims of
" structural" bias, against which there is a strong-presumption, and individual bias See 421 U.S.
at 50-51 n.
16, 95 S. Ct. 1456.
And Withrow dismissed the due process objection even where functions were combined in a body composed of the sama. persons.
Petitioners distort matters by assuming that the decision'whether to institute proceedings is a
" contested matter" in which the Director acts as the " judge."
Such a view does not take account
' fully of the manifold activities of the staff.
The staff's functions occupy a' broad range, en-compassing preliminary investigations of license applications, participation in licensing pro-ceedings, monitoring compliance following issu-1 ance of the license, and, if necessary, initia-tion.of enforcement procedures.
The common
(
, denominator is the application of expertise to a i
preliminary sizing.up of a situation before a
]
procedure is set in train to culminate in a d
o
't decision in an adjudicative proceeding by an in-dependent decisionmaker.
There is no require-ment of the duplication of staffs for each of these preliminary functions.
The limited number of available experts might preclude such a course in any event.
But there is more to it than that.
The point is that the various pre-liminary functions are interrelated and their efficient discharge is aided by staff's famil-iarity with developing situations.
The staff's expertise is central and integrative.
This is an inherent part of the concept of agency ex-pertise.
j[ i. at 1371-72.
j III.
CONCLUSION In conclusion, the UCS petition should clearly have been referred to the Director.
The claim that the Staff has advo-cated restart in another proceeding involving different issues is not a basis for having the Commission take initial ju-risdiction of the petition.
The UCS petition offers no evi-dence of individual bias, and no basis to rebut the strong pre-sumption against structural bias.
Furthermore, the UCS petition seeks to combine in the Commission prosecutorial and quasi-judicial functions, the very result section 2.206 seeks to avoid.
And even UCS, by recommending questions to be asked the Staff, recognizes that the necessity of having the Staff evaluate the UCS petition in the first instance.,
For all of the foregoing reasons, Licensee submits that the requests in the UCS Letter of February 13, 1984 should be denied.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE
~
Thomas.A._Baxter,'P.C.
David R.
Lewis Counsel for Licensee 1800 M Street, N.W.
Washington, D.C.
20036 (202) 822-1000 Dated:
February 23, 1984 i
l l
i i
i i
c; t
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Eatter of
)
)
GPU. NUCLEAR CORPORATION
)
Docket No. 50-289
)
(Three Mile Island Nuclear
)
Station, ' Unit No. 1)
-)
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Response to UCS letter of February 13, 1984 to the Commissioners" were served this 23rd day of February, 1984, by deposit in the U.S. mail, first class, postage prepaid, upon the following:
Chairman Nunzio J. Palladino U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Commissioner Victor Gilinsky U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Commissioner Thomas M. Roberts U.S. Nuclear Regulatory Commission l
Washington, D.C.
20555 l
i Commissioner James K. Asselstine l
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Commissioner Frederick M. Bernthal U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Lillian N. Cuoco, Esquire Office of Executive Legal Director U.S. Nuclear Regulatory Commission l
Washington, D.C.
20555 l
l i
l
y.
. s.
Docketing and Service Section
' Office _of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Harold R. Denton Director Office of Nuclear Reactor Regulation
-U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Ellyn R. Weiss, Esquire Harmon & Weiss 1725 Eye Street, N.W.,
Suite 506 Washington, D.C.
20006 C 4.6dl Thomas A.
- Baxter, P.C.
l
(~
l l
l l
L l
l
.. _....,,.. _ _., -. -. ~..
-