ML20091C939
| ML20091C939 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/29/1984 |
| From: | Blake E METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | |
| References | |
| ALAB-772, SP, NUDOCS 8405300691 | |
| Download: ML20091C939 (14) | |
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DOCKETED USNRC May 29, 1984
,84 flay 30 A10:27 UNITED STATES OE AMERICA 7
NUCLEAR REGULATORYtCOf4M,I.SSION BEFORE THE COMMISSION In the Matter of
)
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METROPOLITAN EDISON COMPANY
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DOCKET NO. 50-289 SP
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(Restart-Management (Three Mile Island Nuclear
)
Phase)
Station, Unit No. 1)
)
LICENSEE'S COMMENTS ON ALAB-772 (MANAGEMENT PHASE)
Licensee has reviewed the Appeal Board's Decision of May 24, 1984 (ALAB-772), on the Management Phase of the TMI-1 restart hearing, with particular emphasis on the relationship of that decision to the Commission's planned decision on wheth-er to lift the immediate effectiveness of the Commission's 1979 suspension orders.
We note at the outset that the Appeal Board reaches no conclusions which contradict those of the Licensing Board on any of the management issues but has found that the record of the hearing is inadequate to support-the Licensing Board's de -
cision in three areas.
For this reason the Appeal Board has reopened and remanded the proceeding to the Licensing Board for 8405300691 840529 PDR ADDCK 05000289 9
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'further heari_ngs on (1) the adequacy of Licensee's licensed op-erator training program, (2) leak-rate testing at TMI-1 and (3) the circumstances surrounding a 1979 Dieckamp mailgram.
The Appeal Board properly noted that its decision must be based on the hearing record and that in performing its adjudi-catory hearing function, it could not properly take into ac-count many of the reports and communications available to the Commission.
ALAB-772, slip. op. at 10 n.6, 157.
In deciding whether to lift the suspension of TMI-l's op-erating authority, however, the Commission is not confined to the adjudicatory hearing record and may properly take into ac-count other reliable information available to it.1/
All three of the matters on which the Appeal Board has reopened the record have been the subject of extensive materials available to the Commission and its staff since the close of the hearing 1/ Throughout this proceeding, the Commission has consis-tently reserved to itself decision as to the lifting of.the im-mediate effectiveness order.
Metropolitan Edison Company, CLI-79-8, 10 NRC 141, 149 (August 9, 1979); CLI-81-19, 14 NRC 304 (August 20, 1981); CLI-81-34, 14 NRC 1097, 1098 (December 23, 1981).
Moreover, the decision as to the lifting of.an im-mediate effectiveness order does not require formal adjudi~ca-tion, where the decision must be based exclusively on the record of formal hearings, but rather informal adjudication.
Kerr-McGee Corp., CLI-82-2, 15 NRC 232.(1982), affirmed, City of West Chicago, Illinois v. United States Nuclear Regulatory Commission, 701 F.2d 632 (7th Cir. 1982),'and the further
. sources cited in footnote 2, supra.
Consequently, as an infor-mal adjudication in an enforcement proceeding, the Commission may base its decision on reliable information_not exclusively derived-from a public hearing.
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971).
" e m
i s
i before the Licensing Board.
The Commission has an obligation to summarily lift Licensee's suspension and restore the origi-
.nal rights under the license when it has sufficient information t'o do so. 2/
With respect to each of the topics which have been re-manded to the Licensing Board, Licensee notes the following:
1.
Licensed operator: Training.
In ALAB-772, the Appeal Board does not fault the adequacy of the extensive record which supported the Licensing Board's determination in August, 1981 (LBP-81-32, 14 NRC 381 (1981)) that Licensee had in place at TMI-1 a comprehensive and acceptable training pro-gram, that Licensee's training was adequate and that Licensee had complied with the Commission's 2/ Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-79-7, 9 NRC 680 (1979), aff'd, Friends of the Earth, Inc. v. United States, 600 F.2d 753 (9th Cir.
1979); Pacific Gas and Electric Company (Diablo Canyon Nuclearf Power Plant), CLI-83-27, 18 NRC 1146 (1983); Public Service Company of Indiana (Marble Hill Nuclear Generating Station),
CLI-80-10, 11 NRC 438 (1980); Consumers Power Company (Midland Plant), CLI-73-38, 6 AEC 1082 (1973); See Northwest Airlines, Inc. v. Civil Aeronautics Board, 539 E.2d 748 (D.C. Cir. 1976); _
Interstate Commerce Commission v. Oregon Pacific Industries, Inc., 420 U.S.
184, 193-194 (1975).
The NRC Staff consistently has maintained this position.
- See, e.g.,
NRC Staff Comments on Immediate Effectiveness With Respect to Licensing-Board Deci-sion on Management Competence / Operator Training, September 11, 1981, at 6; NRC Staff Comments on Immediate-Effectiveness With Respect to Licensing Board Decision on Cheating Incidents, August 20, 1982, at 4-5; Transcript of Oral Arguments Before-the Commission (Immediate Effectiveness), October 14, 1981, Pt.
II at 102-04.
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August 9, 1979 and March 6, 1980 Orders insofar as they relate to training (Id. at 478-79 (1276)).
That Licensing Board decision, however, explicitly was made subject to the outcome of evidence on cheating.
See Id.'at:403 ( 45).
As to the ade-quacy of the subsequently reopened record on cheating, the Appeal Board generally agreed with the Licensing Board that "the overall inquiry (es-pecially the hearing) was as thorough as possi-ble."
ALAB-772, slip. op, at 61.
The Appeal Board's finding of inadequacy with the record is simply the asserted failure of the Li-censing Board subsequent to development of the cheating record to have sought, from the indepen-dent experts relied on for the initial record on training, further testimony as to their conclu-sions in the light of the cheating record.
Id.
at 65, 67.
The Commission has available to it from indepen-dent reviewers substantial information on Licens-ee's training program.
These independent-judg-ments are subsequent to disclosure ef.the cheating incidents and the deficiencies in Licensing's ad-ministration of training noted in the reopened hearing record.
Thus, Licensee's training program i
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.s.
=..
--has been-the subject of NRC reviews and inspec-
~ tions.
See, for example, NRC Inspection Reports 82-19, 83-02, 83-10, 83-22, 83-29, 84-04; 1982 SALP (January 20, 1983); 1983 SALP'(May 7, 1984);
NUREG-0680, Supp. 4 (October, 1983); Operational Readiness Evaluation 84-05~(April 13, 1984);
Licensed Operator Review and Summary (March.30, 1984).
It has been the subject of an independent review by Design Data Laboratories (provided by Board Notification to Appeal Board on October 5, 1982), which recently was endorsed by Mr. Denton to conduct a two-year independent audit of Licens-ee training as required by the Licensing Board.
4 It has been the subject of INPO evaluations in October, 1981 and May, 1983, which included as-sessments of training.
J These reports have all been provided and are available for Commission consideration.
Together they provide a solid basis for concluding that a sound training program has been in effect at TMI-1 which protects against cheating and corrects the deficiencies found by the Licensing Board, noted-by the Appeal Board, and acknowledged by Licensee
.c to have existed-in the early post-accident training period.
Moreover, since receiving
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ALAB-772, Licensee has undertaken to promptly re-activate the OARP Review Committee to obtain their evaluation.of the present training program.
Finally, the Commission also has available the re-sults of retesting of TMI-1 operators in accor-dance with NRC's latest stringent examination ad-ministrative controls.
2.
TMI-1 leak rate testing.
In ALAB-772, the Appeal Board notes its prior reopening decision in ALAB-738 for hearing on pre-accident leak rate testing practices at TMI-2, further noting that the Commission stayed that reopened hearing in October, 1983.
ALAB-772, slip op. at 149, 150 n.
114.
The Appeal Board then proceeds to grant in ALAB-772 a motion to reopen as to TMI-1 leak rate practices.
Id. at 151.
Despite observing that the overall conclusion of recent NRC Investigative Reports (#1-83-028 and. supplement) are favorable to Licensee, the Appeal. Board nevertheless ex-presses its belief that they are the type of mate-rial best scrutinized by the Licensing Board as part of its review of all'of the circumstances surrounding the leak rate practices at Unit :1.
That may-be so.
It need not,.however, control a Commission decision on. restart.
The Commission 1 i i
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.can readily_ conclude on the basis of the recent OI Investigation Reports that questions.of management integrity no longer exist as to this matter, even assuming the Commission agrees with the Appeal Board.that some details ~of leak rate testing at I
TMI-l warrant further hearings.
The Appeal Board does not suggest that management integrity is f
questioned in the OI Report.
Rather it cites fac-t tors on which the Commission has considerable 3
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other measures of Licensee.
See ALAB-772, slip.
op, at 153.
But see, for example, 1982 SALP (January 20, 1983); 1983 SALP'(May 7, 1984); NRC Inspection Reports 83-10, 83-25, 83-26,-84-08;.
INPO Evaluation-(October, 1981'and May,.1983);
NUREG-0680, Supp. 4 (October, -1983 );: NUREG-lO66 m
(May, 1984); GPUN (P.R. Clark) ltr. to.NRR (H.
1983 (Status.of. Personnel Denton), November 28, Changes); Management Review For Restart (May 11,.
1984).
1-3.
Dieckamp Mailgram.
In-ALAB-772, the. Appeal-
~
Board faults the Licensing Board.for not further y
exploring the circumstances surrounding a mailgram-Mr. Dieckamp sent to Congressman Udall on May 9, 1979.
ALAB-772, slip, op. at 128-34. -Specifical :
ly, as to.Mr. Dieckamp, _the Appeal Board notes-4 4
4
s I
n that the L1 censing Board did not question Mr.
Dieckamp on this matter and further that it is not readily apparent that the NRC staff, upon whom the Board did rely (See NUREG-0760, particularly p.
24), ever interviewed him.
Id. at 129-n.99, 132.
The Commission already has available to it the information as to Mr. Dieckamp that the Appeal Board would seek by reopening the record.3/
As Licensee pointed out in its immediate effective-ness comments to the Commission in September, 1981, Mr. Dieckamp, in. fact, was directly ques-tioned by the staff in a deposition in September,.
l 1980.
That deposition which explored Mr.
Dieckamp's knowledge and sources.of that knowledge at the time he sent the 1979 mailgram is available to the Commission.
Moreover, the Commission itself has questioned Mr. Dieckamp on the mailgram.
Public Meeting, Presentation on TMI-1 Restart, October 14, 1981, at 10,~91-95 (morning session) and at 3-6 (afternoon session).
- Further, 3/ In addition to exploring Mr. Dieckamp's knowledge when he sent the mailgram in 1979, the Appeal Board would explore other individuals' knowledge and appreciation'of the pressure spike on the day of the accident.
See ALAB-772, slip,op, at 132 n.
103, 134.
Knowledge of others could be reexplored.in a hearing, but-it appears unnecessary to a determination as to Mr..Dieckamp's knowledge and the. basis for his knowledge in May, 1979. i o
e
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aus Licensee has previously stated to the.Commis-sion, the earliest ofLthe interviews of the two individuals in the control room on March 28 whose appreciation of tde hydrogen spike came later to be known was not"co$ ducted by NRC I&E investiga-tors until after Mrl..Dieckamp's mailgram and the-j l
Company did not receive a transcript of this in-terview until months later.
In the only interview of either of these two individuals which took
. place prior to the mailgram-(conducted by GPU per-
< >i sonnel on April 25th), Trio -appreciation, on the day of the accident, of the pressure spike was re-ported.
Thus, the Commission already has the information available on which.to judge Mr.
Dieckamp's knowledge in May, 1979, which the Ap-peal Board seeks through reopening.
Licensee is still reviewing the Appeal Board's Decision.
However, based on review to date and for the reasons stated above, Licensee does not believe that Decision, including the.
Appeal Board's order to reopen on these discrete subjects,-war-rants any change in the Commission's tentative--schedule for a decision on lifting immediate effectiveness.
A1 reopened hear-ing may enhance the adjudicatory record in this' proceeding; it' is not necessary, however, for a Commission decision'now to-lift the immediate effectiveness of the Commission's 1979 suspension orders.
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a-a We are deeply concerned over the implications for a deci-sion relative to restart of TMI-1 that are implicit in the Ap-peal Board's order.
We can envision yet another delay of many months if the Commission accepts the option of awaiting the re-sult of another reopened proceedinq before acting.
Licensee fully accepts the primacy of assucing public health and safety.
Information available to the Commission is ample to provide the required reasonable assurance.
Further delay for reopened hearings will not provide sufficient increased assurance to offset three adverse consequences to GPU and to its customers:
promised rate relief to the citizens and businesses that it serves will be further postponed; the owners of GPU's facili-ties will be required to wait for an additional indefinite pe-riod before receiving a return on their investment; and, most important, the schedule for defueling and clean-up of TMI-2 will almost certainly be further delayed.
In a broader sense, if the Commission is unable to bring this matter to the point of decision it must be of concern to all elements of the nucle-ar power industry and to those who rely on that industry for needed supplies of electric power.
The Commission had originally projected that the proceed-ing prior to a decision on restart would require 12 months.
We are now approaching the sixth year.
We question whether the benefits to the public associated with these repeated delays outweigh their costs.
We believe that the Commission has the.
.N
L. : s-information available!to-it now to permit it to mak o-e a sup-portable-decis' ion in 'this matter and respectfully urge th t i g.
a t-act on that information.
. Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By:
! I. '
Ernest L. Blake,-Jr., P.C.
Counsel for Licensee 1800 M Street, N.W.
Washington,.D.C.
20036 (202) 822-1000-Dated:
May 29, 1984
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J May 29, 1984 00CHETED USimc UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION y.(E[T b5I'h$':
BRANCH Before the Commission In the Matter of
)
)
Docket No. 50-289 SP METROPOLITAN EDISON COMPANY
)
)
(Restart)
(Three Mile Island Nuclear
)
Station, Unit No. 1)
)
(Management Phase)
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the fore-i going Licensee's Comments on ALAB-772 (Management Phase) dated May 29, 1984, was served this 29th day of May, 1984, by hand delivery to those persons on the attached Service List: designated by an asterisk (*) preceding their name, and by deposit in the United States mail, postage prepaid, addressed to all other persons on the attached Service List.
W 4 MA A.
Ernest L.
Blake, Jr.
E i
1 l
UNITED STATES 0F AMERICA NUCLEAR REGULATORY COMMISSION i
Before the Commission In the Matter of
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METROPOLITAN EDISON COMPANY
)
Docket No. 50-289 SP
)
(Restart-Management (Three Mile Island Nuclear
)
Phase)
Station, Unit No. 1)
)
SERVICE LIST Nunzio J. Palladino, Chairman
- Administrative Judge U.S. Nuclear Regulatory Commission John H. Buck Washington, D.C.
20555 Atomic Safety & Licensing Appeal Board Victor Gilinsky, Commissioner
- U.S. Nuclear Regulatory Commission i
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 i
Washington, D.C.
20555 Administrative Judge Thomas M.
Roberts, Commissioner
- Christine N. Kohl U.S. Nuclear Regulatory Commission Atomic Safety & Licensing Appeal Washington, D.C.
20555 Board U.S. Nuclear Regulatory Commission James K. Asselstine, Commissioner
- Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Administrative Judge Ivan W. Smith, Chairman Frederick Bernthal, Commissioner
- Atomic Safety & Licensing Board i
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Administrative Judge Administrative Judge-Gary J. Edles, Chairman Sheldon J. Wolfe Atomic Safety & Licensing Appeal Atomic Safety & Licensing Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 G
i Administrative Judge Mr. Henry D. Hukill i
Gustave A. Idnenberger, Jr.
Vice President l
Atomic Safety & :.icensing Board GPU Nuclear Corporation U.S. Nuclear Pagulatory Connaission P.O. Box 480 Washington, D.C.
20!55 Middletown, PA 17057 Dacketing and Service.Section (3)*
Mr. and Mrs. Norman Aamodt.
Office of the Secretary R.D.
5 U.S. Nuclear Regulatory Cosutission Coatesville, PA 19320 Washington, D.C.
20555 Ms. Louise Bradford Atomic Safety & Licensing Board TMI ALERT Panel 1011 Green Street U.S. Nuclear Regulatory Connaission Harrisburg,,PA 17102 Washington, D.C.
20555 Joanne Doroshow, Esquire Atomic Safety & Licensing Appeal The Christic Institute Board Panel 1324 North Capitol Street U.S. Nuclear Regulatory Connaission Washington, D.C.
20002 Washington, D.C.
20555 Ms. Gail Phelps Jack R. Goldberg, Esq. (4)
ANGRY /TMI PIRC Office of the Executive Legal 1037 Maclay Street Director Harrisburg, PA 17103 U.S. Nuclear Regulatory Comunission Washington, D.C.
20555 Ellyn R. Weiss, Esq.
Harmon, Weiss & Jordan Maxine Woelfling, Esq.
2001 S Street, N.W..
Suite 430 Office of Chief Counsel Washington, D.C.
20009 Department of Environmental f
Resources Michael F. McBride, Esq.
505 Executive House LeBoeuf, Lamb, Leiby & MacRae P.O. Box 2357 1333 New Hampshire Avenue, N.W.
Harrisburg, PA 17120 Suite 1100 i
Washington, D.C.
20036 John A. Levin, Esq.
Assistant Counsel Michael W. Maupin, Esq.
Pennsylvania Public Utility Hunton & Williams Comunission 707 East Main Street P.O. Box 3265 P.O. Box 1535 Harrisburg, PA 17120 Richmond, VA 23212 David E. Cole, Esq.
Smith & Smith, P.C.
2931 Front Street Harrisburg, PA' 17110 i
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