ML20092H188
| ML20092H188 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 06/22/1984 |
| From: | Blake E METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | |
| References | |
| ALAB-772, NUDOCS 8406250377 | |
| Download: ML20092H188 (13) | |
Text
,
Junefpl;iT984
'84 JJ125.tu.10 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION m
BEFORE THE COMMISSION In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289
)
(Restart-Management Phase)
(Three Mile Island Nuclear
)
Station, Unit No. 1)
)
LICENSEE'S PETITION FOR REVIEW OF ALAB-772 In accordance with 10 C.F.R S 2.786, Licensee petitions the Commission to review the Appeal Board's May 24, 1984 decision, ALAB-772, insofar as it reopens and remands the management phase of this proceeding on three matters.
The issue the Commission is asked to address here is whether the existing record meets the in-tent of the Commission's 1979 Orders which initiated this five-year long suspensior proceeding, a question the Commission itself is uniquely qualified to decide.
Granted further hearings could en-hance the record here (which should be true in every case), such enhancement is unnecessary.
The existing record is adequatw.
Moreover, further hearings will involve the Commission, its tribu-nals and Staff, and the parties in months of additional litigation without an offsetting benofit to anyone other than those who do not want a decision reached 1.4 this proceeding.
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8406250377 840622 PDR ADOCK 05000289 0
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The "most significant" record deficiency, in the Appeal Beard's view, is in the area of licensed operator training.1/
In its August 1981 partial initial decision, based on an extensive
)
record, the Licensing Board found that training was adequate and j
that Licensee complied with the Commission's Orders on training.
LBP-81-32, 14 N.R.C.
381, 478-79 (1981).
This partial decision, which the Appeal Board did not fault, was made subject to the out-come of the Licensing Board's inquiry into cheating.
The Appeal Board does not quarrel with the record subsequently developed by the Licensing Board on the cheating incidents, finding that "the overall inquiry (especially the hearing) was as thorough as possi-ble."
ALAB-772, slip op. at 61.
The Appeal Board'c principal dif-ficulty with the record overall, however, that the Licensing Board, subsequent to development of the. cheating record, did not seek from the independent experts who' testified on behalf of Licensee, and who were relied on by the Board in reaching its initial findings on the substantive adequacy of Licensee's training program,-further testimony as to their conclusions in the light of'the cheating record.
Id. at 65, 67.
1/
This subject was raised in briefs filed by TMIA, the Aamodts and UCS in support of their exceptions to the Licensing Board's-final partial decision..See "TMIA's Brief in Support of Exceptions
.to Partial Initial Decisions of August 27,.1981~and July. 27,,1982 -
Management Issues and Reopened Proceedings,"
(September'30,.
1982)("TMIA Brief"), at 59-64; "Aamodt Brief of Exceptions Taken to August 27, 1981,-July 27, 1982 Partial Initial: Decisions (Manage-ment Issues / Training / Integrity)," (September 30, 1982) ("AamodtL Brief"), at 8-9, 11; " Union of. Concerned Scientists' Brief.on Ex-ceptions to Partial Initial Decision (Reopened Proceeding),"
(September 30, 1982)("UCS.Brief"), at 5, 17,. 19-20.
. L
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r The Appeal Board's concern suggests that the Licensing Board v
E k
insufficiently appreciated the infirmities in Licensee's training E
program which contributed to cheating as disclosed by the reopened 2
hearing.2/
This is not the case.
Indeed, the Licensing Board took careful stock of Licensee's substantial improvements in test admin-istration designed to cure the identified problems.
LBP-82-56, 16 h
N.R.C.
281, 296-297, 359-360.
In contrast, the Appeal Board, in a e
footnote, simply notes it did not overlook Licensee's improvements.
E ALAB-772, slip op. at 63 n.
47.
The Appeal Board opines that the r
improvements even when supplemented by additional steps required by the Licensing Board 3/ are largely ministerial and not sufficiently convincing fixes of "what may be more serious infirmities in the E
training program."
Id. (emphasis added).
To ensure Licensee's examination administration improvements coupled with other improvements added by Licensing Board conditions s
were sufficient, the Board required that Licensee be subject to a
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two-year probationary period during which Licensee's qualification E
g and requalification testing and training program shall be subjected y
to an in-depth audit by independent auditors, approved by the n
L k
2/
This view is somewhat surprising, given the Appeal Board's i_
concurrent recognition that "the adequacy of licensee's training b
program consumed an enormous amount of hearing time below."
ALAB-774 (June 19, 1984), at 8, citing ALAB-772, slip op. at 14-15.
3/
Licensee took no issue with the Licensing Board's conditions P
requiring additional improvements.
Notwithstanding the Appeal E
Board's willingness to take note of " newly supplied, essentially
' objective' information," see ALAB-772, slip op. at 157, it ignored the " objective" fact that Licensee has fully implemented the Li-censing Board's conditions for licensed operator training and the Staff has approved the implementation.
See Licensee's Comments on the List of Integrity Issues (February 21, 1984), attached Status Report at 36, 45-46.
K-L -
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o Director of NRR, such auditors to have had no role in the TMI-1 i
restart proceedings.4/ This added assurance the Appeal Board treats in two sentences finding it "necessary and desirable"; how-ever, it is unable to determine whether this assurance is suffi-cient.
ALAB-772, slip op. at 65-66.
Thus, in the area of licensed operator training, the Appeal Board displaces the Licensing Board's determination with its own.
The Appeal Board has ordered reopening to explore what even it only postulates "may be" more serious infirmities in the training pro-gram.
Licensee submits that the Licensing Board's decision, based on its extraordinarily thorough review of Licensee's training pro-grams, procedures and managers, was adequate.
The Appeal Board's substituted judgment, which would apply a perfection to the record that is unnecessary, is erroneous.
The Commi:sion should reinstate the Licensing Board's decision on licensed operator training.
The second area where the Appeal Board found the record is not as complete as it should be concerns the circumstances surrounding a.mailgram sent by GPU President Herman Dieckamp to Congressman Morris Udall in May, 1979.
The Appeal Board believes the Licensing Board should have inquired more deeply into this matter on its own,5/ and should not have relied on an I&E report on the subject i
4/
Again, Licensee took no-issue with this requirement.
And again, although the Appeal Board took no notice under its "objec-tive" evidence standard, Licensee: nominated an independent auditor-on May 3, 1983, and the Staff on April 9, 1984 approved Licensee's nominee.
5/
This is the same Licensing Board about which the Appeal Board states:
"Our canvas of the record reveals a board 5 ell awarelof l
its responsibility to the public and the Commission to ensure that it receives all information necessary to a thorough investigation and resolution of the questions before it."
ALAB-772, slip op. at 94-(citations omitted).,
t
n ce-p~
sand the testimony of the head'of the I&E team that investigated the
- subject.and' issued the report.
This issue was raised on appeal by n
TMIA.6/
As with the training issue, the Appeal Board unjustifiably re-7
.jects the Licensing Board's belief that it had enough information i
and more information was_not necessary on this matter.
While'ad-mitting that the additional hearing it orders "may not be particu-4 1
larly fruitful," ALAB-772, slip op, at 133, the Appeal Board-be-p lieves it's " worth some additional effort," particularly since it-
[
is remanding in'any event on the training issue..Id. at 134.
The Appeal Board erred in applying a lower. threshold for re--
a opening this issue because it was remanding in any event another I
matter.
The test for reopening on each issue should be indepen-dently applied.7/ Although.on the training issue, the Appeal Board-l-
finds.that the test-for reopening is met,8/ see id. at 66 n. 50, it l
l does not even make such a determination as to the Dieckamp i
mailgram, let alone support it.
l The Appeal ~ Board regarded itias.particularly-important that' Mr. Dieckamp be questioned on the subject of the mailgram.
It 6/
See TMIA Brief at 29; LBP-81-32, 14 N.R.C.
381, 556-556 (1981);.see also Licensee's~Brief in-Opposition to Appellants' 4
Brief on Exceptions Relating to Management Capability, November 15,.
-1984~(" Licensee's'Brief"),Lat 5'i-58; "NRC Staff's'Brief in: Response:
1 '.
to the Exceptions of Others to the Atomic Safety and. Licensing:
1 4
. Board's Partial' Initial Decisions on: Management and Cheating' l
- _I s sue s, " (November 19; 1982) at:30-32.
7/. See Pacific Gas and Electric Co.'
(Diablo~ Canyon Nuclear-Power?
Plant, Units-1 and.2), ALAB-756, 18 N.R.C.01340,11344-46L(1983).
.jho l Licensee. disputes'this determination..See'discussionkoff Ltraining: record,ysupra.
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e faults the Licensing Board for not doing so on its own, despite the fact that no party sought to question Mr. Dieckamp on the subject when he appeared as a witness.
With their interest in this subject so keen as to require a reopening, we believe the Appeal Board erred in not pursuing whether Mr. Dieckamp was questioned on this subject.
It is a matter of fact that he was questioned, and by the very I&E team that the Licensing Board relied on for its determina-tion in the Dieckamp matter.9/
No party challenges that fact, nor could it.
Under its " objective" standard, see n.3, supra, the Appeal Board certainly could have determined conclusively that Mr.
Dieckamp was questioned.
Its finding that the transcript "sug-gests" he was questioned is unfathomable under the circumstanc-es.10/
Undoubtedly, however, the Commission knows Mr. Dieckamp was questioned.
To ignore this fact, to therefore fault.he adequacy of the I&E investigation effort upon which the Licensing Board relied, and to consequently fault the Licensing Board and the ade-quacy of the record on this count is erroneous.
The Commission should reverse the Appeal Board's reopening on this matter, and
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9/
Licensee explicitly pointed in its brief to the Appeal Board to the fact that Mr. Dieckamp specifically was questioned on this subject.
Licensee's Brief at 58 n. 60.
Moreover, Licensee's Com-ments on Immediate Effectiveness in which this subject was further addressed were provided to the Appeal Board Panel Chairman in September 1981.
Finally, the Commission itself has questioned Mr.
Dieckamp.
See Public Meeting, Presentation on TMI-l Eestart, October 14, 1981, at 10, 91-95 (morning session) and at 3-6 (after-noon session).
10/ The remand on this basis is particularly disturbing given the fact that the Appeal Board never asked a question on this subject during some 30 months when,the appeal lay before them or.during a full day's oral argument on this appeal..
O I
avoid a costly additional proceeding which the Appeal Board itself o
admits "may not be particularly fruitful."
The third area where the Appeal Board would reopen and remand the proceeding for further hearing concerns leak rate testing prac-tices at TMI-1.
This subject was not specifically addressed in the restart hearings nor was it the subject of exceptions or related appellate briefs before the Appeal Board.
Rather, it was the raised in a motion to reopen in January, 1984, which is granted in ALAB-772.
The Appeal Board has erred'in determining that this mat-ter is so significant that a different result would have been reached by the Licensing Board if this subject had been considered in the hearing.
The Appeal Board in its discussion of leak rate practice first clarifies ALAB-738 by stating that all that it reopened in that de-cision was preaccident leak rate practices at TMI-2 and that there was no basis at the time to explore leak rate practices at both units.ll/
ALAB-772, slip op. at 151-152.
It then goes on to cite the Board notifications by the staff of indications of practices at TMI-1 similar to those at Unit 2.
The Appeal Board reasons that if the allegations at Unit 2 which were the subject of a Justice 11/ The Appeal Board expresses curiosity that Licensee in a hear-ing on the Hartman allegations would be prepared to present evi-dence regarding leak rate pract.ces at Unit 1.
ALAB-772, slip.op.
i
[
at-151.
This proceeding's purpose is.to determine the restart of Unit 1.
Licensee'could not conceive that where practices at Unit 2 r
which led.to a federal criminal proceeding were to be explored, Licensee should not be prepared, indeed might not be required, to l
discuss the nature of the current practices which would be' employed upon restart of the very unit-in question, Unit 1.
This view was l
supported by the "taff.
See NRC Staff's Answer to Aamodt. Motion for Reopening tc Examine Leak Rate Falsification at Unit 1 (February 9, 1984), at 3.
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Department investigation (and ultimately a criminal proceeding) were so significant that the Licensing Board made its decision sub-ject to the outcome of that investigation,'then "[t]he same neces-sarily follows for the new allegations concerning leak rate prac-
.tices at TMI-1."
Id. at 152.
This is error.
What new allegations?
The Staff's?
The Intervenors'?
There are no facts which warrant this faulty logic.
In fact, there has never been, is not now, and is not in the offing, any basis for a Justice Depart-ment investigation of TMI-1 leak rate practices.
Other than the i
Aamodts' outrageous, unsupported and irresponsible accusations, see i
Licensee's Response.to Aamodt Motion For Reopening To Examine Leak Rate Falsification at Unit 1 dated February 8, 1984, there is no 4-basis for the Appeal Board's equating TMI-1 practices to those at i
TMI-2.
Moreover, the Appeal' Board has rejected, without basis, i
Licensee's view that it should await the outcome of a pending OI 1
investigative report before deciding whether to reopen the record l
on TMI-1 leak rate practices.12/
We now have.the OILinvestigative report.
We now have for the first time an account 13/ of the facts i
l 12/
As Licensee stated to the Appeal Board in its response to the-motion to reopen, none of the parties nor the. Appeal: Board were-privy to facts sufficient to evaluate the TMI-1 leak rate: practices and reopen'the record, and: "At a minimum, the Appeal Board should await the'resultsLof N.R.C.'s present investigation,.its~ disclosure (along with the inspection report) to the parties,.and a' meaningful-opportunity for argument 1on the possible need to roopen.": Licens-ee'afResponse to-Aamodt Motion For Reopening'to' Examine Leak Rate Falsification at Unit 1, February 9, 1984, at 4.
13/J. Licensee-expects shortly to make available a second in-l
'vestigative report ~it commissioned on TMI-1 leak rate practices.
'See ALAB-772,. slip op. at 154 n. 120.
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upon which to argue the possible significance of this matter to the Licensing Board's decision.
The Appeal Board provided no opportu-nity to the parties to argue the need to reopen once the facts were available.
Instead, it took account of the OI report, without any input from the parties, and decided to reopen apparently coincident
(
with the timing of ALAB-772.
In particular, it did not ask the Staff in light of the OI report to clarify 'che Board notifications on which the Appeal 3oard based its decision to reopen.
This is error.
Moreover, that it finds support in the OI report for re-opening the record on management issues is illogical.
The signifi-cance of the Hartman allegations regarding leak rate practices at Unit 2 is not present at Unit 1 and the OI report bears this out in spades.14/
In sum, the Appeal Board erred in granting the motion to re-open to consider TMI-1 leak rate practices because there were not facts extant concerning TMI-1 which provided a basis for applying the serious implications of Unit 2 practices to Unit 1.
- Further, to the extent the Appeal Board relied on the OI report, it was in-appropriate to do so without input from the parties.
This is par-ticularly true in view of the Appeal Board's effective rejection of the OI report findings absolving Unit 1 of the implications of 14/
The Appeal Board.goes on to interpre*. and place reliance on its perception of.he OI report's discussion of reco.-d-keeping requirements, knowledge of "a laop seal," and pre-accident work re-quest response.
ALAB-772, slip op. at 153.
There is in this pro-ceeding extensive evidence on record-keeping, pre-accident work re-quests and the talent and technical know-how of the present Licensee organization.
The Appeal Board does not find, nor could it reasonably find, that the subjects it points to in the OI report rise to the level of significant new information which would have affected the outcome in this proceeding and now justify reopening. l
serious concern at Unit 2.
The Commission should reverse the Ap-peal Board's decision to reopen on the subject of TMI-1 leak rate testing.
The Commission should exercise its discretion in favor of grantir.g this petition.
The TMI-1 proceeding is unique.
The Com-mission itself has demonstrated an interest in this proceeding
-which dwarfs its involvement in any other licensing proceeding.
There have aeen numerous Commission-meetings on this proceeding.
It has monitored directly the proceeding from its start.
4 The Appeal B(.ard's~ action in ALAB-772 to reopen and remand will involve Commission and party resources in months and months of additional-litigation of this case.
The record is adequate now.
The degree of record perfection sought by the Appeal Board in ALAB-772 is unnecessary and unwarranted.
The Commission's judgment should be brought to bear to grant Licensee's Petition.
Respectfully submitted, k,
b he e
George F. Trowbridge, P.C.-
Ernest L. Blake,~ Jr., P.C.
Deborah B. Bauser
.SHAW, PITTMAN, POTTS &-
TROWBRIDGE 1800 M Street, N. N.
Washington, D.C.-
20036 (202) 822-1000 Counsel-for~ Licensee Dated:
June 22, 1984 i.
i'._
l
,a l
l June 22, 1984
[
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289
)
(Restart-Management Phase)
(Three Mile Island Nuclear
)
Station, Unit No. 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Petition for Review of ALAB-772," dated June 22, 1984, were served on those persons listed on the attached service list by deposit in the United States mail, postage prepaid,1this 22nd day of June, 1984.
.M Ernest L.
Blake, Jr.,
Counsel for Licensee Dated:
June 22, 1984
.. o -
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289 SP
)
(Three Mile Island Nuclear
-)
(Restart - Management 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 U.S.- Nuclear Regulatory Commission Washington, D.C.
20555 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 Commiss!.on 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 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 Safetyts Licensing Board Board..
U.S. Nuclear Regulatory. Commission U.S.-Nuclear Regulatory Commission Washington, D.C.,<20555
' Washington, D.C.
20555
_I
a
- Administrative Judge Mr. Henry D.
Hukill Gustave A.
Linenberger, Jr.
Vice President Atomic Safety & Licensing Board GPU Nuclear Corporation U.S. Nuclear Regulatory Commission P.O. Box 480 Washington, D.C.
20555 Middletown, PA 17057 Docketing and Service Section (3)
Mr. and Mrs. Norman Aamodt Office of the Secretary R.D.
5 U.S. Nuclear Regulatory Commission Coatesville, PA 19320 Washington, D.C.
20555 Ms. Louise Bradford Atomic Safety & Licensing Board TMI ALERT Panel 1011 Green Street U.S. Nuclear Regulatory Commission Harrisburg, PA 17102 Washington, D.C.
20555 Joanne Doroshow, Esquire Atomic Safety & Licensing Appeal The Cnristic Institute Board Panel 1324 North Capitol Street U.S. Nuclear Regulatory Commission 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 Commission Washington, D.C.
20555 Ellyn R. Weiss, Esq.
Harmon, Weiss & Jordan
_Maxine Woelfling, Esq.
2001 S Street, H.W.,
Suite 430 Office of Chief Counsel Washington, D.C.
20009 Department of Environmental 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 Washington, D.C.
20036 John A. Levin, Esq.
Assistant Counsel Michael W. Maupin, Esq.
Pennsylvania Public Utility Hunton & Williams Commission 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 l-I l
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