ML20092H750
| ML20092H750 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 06/25/1984 |
| From: | Weiss E HARMON & WEISS, UNION OF CONCERNED SCIENTISTS |
| To: | |
| References | |
| ALAB-772, NUDOCS 8406260258 | |
| Download: ML20092H750 (12) | |
Text
THE UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
,{fD "UII 25 P1.27 y
In the Matter of
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)
Docket No.150--289 METROPOLITAN EDISON COMPANY, et al.
)
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(Three Mile Island Nuclear
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Generating Station, Unit 1)
)
)
UNION OF CONCERNED SCIENTISTS' OPPOSITION TO GPU REQUEST FOR STAY (ALAB-772) 1.
The Application for a Stay is Inconsistent With the
. Procedures Adopted by the Commission for This Proceeding.
The procadures adopted by the Commission for this " unique" proceeding do not contemplate and are inconsistent with the consideration of an application for a stay.
In August, 1981, the Commission changed the original procadures for this case, which had called for bypass of the Appeal Board and, in its place, review by the Commission of the record as a condition of restart.
Instead, the Commission directed the Appeal Board to undertake a merits review of the record but reserved for itself the determination of whether to lift the "immediate effectiveness" of the 1979 license suspension.
Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), CLI-81-19, 14 NRC 304 (1981).
Subsequantly the Commission alaborated further on the division of responsibility when it removed from the Appeal Board the authority to grant a stay of any Licensing Board decision:
The Commission is the exclusive adminirtrative body with the power to determine whether Unit One may restart b 03 8406260258 840625 PDR ADOCK '05000289 Q
2-during the pendency of any possible appeals of a Board decision before the Atomic Safety and Licensing Appeal Board.
Parties may not file papers with the Appeal Board either supporting or opposing a stay of any such decision during the pendency of any such appeals.
Therefore, any party which has a position on whether, in light of the Licensing Board's decision, Unit One should be allowed to restart during the pendency of any such appeals should so argue in its comments submitted to the Commission.
Tha Commission has decided against Appeal Board stay authority because this case differs significantly from normal initial operating license cases.
IIe r e, a decision by the Commission rather than granting e;fectiveness to a Licensing Board dacision, would be determining, basad on that decision and other factors, whether the concerns which prompted its original immediate suspension order of August, 1979, justify a continuation of that suspension.
If they do not, and the Commission therefore can no longer find that the "public health, safety and interest" mandates the suspansion, then the Commission is required by law --
whatever the nature of the Licensing Board's decision -- to lift that suspension immediately.
This is a matter peculiarly within the Commission's knowledge and involving the most discretionary aspects of its enforcement authority.
CLI-81-34, 14 NRC 1097, 1098 (1981) (emphasis added).
As the Commission's language quoted above makes quite clear, the reason for removing stay authority from the Appeal Board was that the restart decision would not hinge on granting effectiveness to any particular Licensing Board decision but rather on removing the immediate effectiveness of tha 1979 suspension order, a decision which requires the Commission to find that the concerns which prompted the suspension order no
-longer justify its continuation.
A stay, by contrast, is indisputably a decision concerning tha merits of the on-the-record adjudicatory proceeding, which requires the Commission not only to accept review of ALAB-772 but also to find, inter alia, that GPU has made a strong showing that it is likaly to prevail on that merits review.
10 CFR S 2.788(e)(1).
Since the Commission's withdrawal of stay
. authority from the Appeal Board was premised on the determination that tha restart decision would be ma.
by the C,mmission separately from the merits review, indeed "whatever the nature of the Licansing Board's decision," (Id.) the granting of a stay would be anomalous, inconsistent with the procedure established for this case, and ultimately meaningless.
2.
GPU's Request Does Not Meet The Standards Required For The Granting Of A Stay a.
GPU has failed to establish that it will suffer irraparable injury in tha absenca of a stay We begin with this factor because it is well established as the "most crucial factor" in deciding on a stay request.
Public Servica Co. of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-77-27, 6 NRC 715, 716 (1977); ALAB-507, 8 NRC 551, 556.(1978); Long Island Lighting Co. (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-481, 7 NRC 807, 808 (1978); Taxas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1.and 2), ALAB-716, 17 NRC 341, 342, n.1 (1983).
In this case,.it could not be more clear that denial of a stay will have no operative effect on restart and thus no potential to cause injury, much less irreparable injury, to GPU.
Whethar or not ALAB-772 is stayed, TMI-1 cannot operate without a separate decision by the Commission lifting the 1979 licanse suspansion and addrassing whether the concerns which
-mandated that suspension has been satisfied.
The Commission stated this unequivocally in CLI-81-34, 14 NRC 1097, 1098 (1981) quoted above.
This is unlike the normal licensing case where, absent a stay, a favorable Licensing or Appeal Board
, decision becomes immediately effective and triggers authorization to the Staff to immediately issue a construction permit or operating license.
10 CFR S 2.764(a) and (b).
In that case, denial of a stay is equivalent to authorizing construction or operation, and granting of a stay would likewise, without any further action, constitute withholding of permission to build or operate.
In this case, by contrast, the granting or denial of a stay would have no effect whatever on restart -- a Commission decision is necessary to effect that --
and it therefore follows ineluctably that denial of the stay request cannot cause irreparable injury to GPU 1/
I Moreover, even if the Commission were to disregard the above, GPU has not presented grounds for finding irreparable injury._ Such grounds must be well documented; conclusory allegations are insufficient.
United States Dept. of Energy at al. (Clinch River Breeder Reactor Plant) ALAB-721, 17 NRC 539, 544-5 (1982); In Re:
Fira Protection for Operating Nuclear Plants-(10 CFR 50.48), CLI-81-11, 13 NRC 778 (1981).
Ila r e, GPU alleges first that " promised rate relief" to its l
customers will be delayed.
Even if true, this does not 1/Saa Long Island Lighting Co. at al (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-521, 9 NRC 51 (1979) where a stay requast was denied because, although the applicants had a construction permit, they could not go forward with construction until they obtained approval from the State of New York:
The Jamesport projact is not proceeding and it will not proceed without authorization from the appropriate State
-authority.
Tha County has not only failed to show irreparable injury; it has failed to show any injury at all from the absence of a stay.
Id. at 53.
The case is directly on point.
. constitute irreparable injury to GPU.
Moreover, as noted above, the only action which could even arguably trigger rate relief would be restart, and a stay of the Appeal Board decision cannot by itself affect restart.
'N'
, GPU claims that it will have to " wait" for return on its is.<estment.
Again, GPU confuses the restart decision with a stay of the Appeal Board decision.
In addition, monetary injuries of this nature are not " irreparable".
American Hospital Association V,
Harris, 625 F.2d 1328, 1331 (7th cir.
1980); Tolado Edison Co. et al. (Davis-Bessa Nuclaar Power Station, Units 1, 2 and 3), ALAB-385, 5 NRC 621, 627-8 (1977).
Third, GPU alleges that a delay in clean-up of TMI-2 will "almost certainly" occur.
This is the sheerest speculation.
The TMI-2 clean-up is stalled because the nuclear industry has thus far failed to contribute promised funds to the effort.
Staying the Appeal Board-decision will not affect this; indeed even restart is unlikely to substantially affect it, given the magnitude of the sums involved.
Lastly, GPU claims harm in the effort and expense of conducting hearings.
It is black letter law that this is not irreparable harm, no macter how substantial.
Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-395, 5'NRC 772, 779 l
(1979)
-B.
GPU has not astablishad a strong likalihood of prevailing on the merits y
r Without a showing of irreparable injury, the party requesting a stay is required to establish an "especially
i o
r
- s. g
' compelling showing" on the other three factors -- prime among these, a. strong likelihood of prevailing on the merits.
Florida Power and Light Co. (St. Lucie Nuclear Power Plant,>
3 Unit No. 2) ALAB-415, 5 NRC 1435, 1437 (1977).
Moreover, mere allegations are not enough when relying on facts in dispute.
The Commission's rules require reference to the record or affidavits.. 10 CFR S 2.788(b)(4)'.
See Consolidated Edison Co.
of N.Y. [ Indian Point Station, Unit No. 2) ALAB-414, 5 NRC 1425, 1432 (1977).
GPU's pleading makes no references toz the
(
- iecord 'nor contains any affidavits.
i Measured against this atiff burden, GPU's pleading is all but perfunctory.
The centr al issue addressed by the Appeal Board was: "is the instr.uction [of operators] adequate,to prepare the operators to operate the plant safely?"
The Appeal Board held here that it " disagreed" with the Licensing Board's affirmative answer to that crucial l
question.
Id.
In light of this ruling, it is astonishing that
. i GPU could assert thatt"[t]he decisions of the Appeal Bcard and Licensing Board;do not differ on any finding of fact or y
W p
'T law..."
Licensee's to' Request for Stay (ALAB-772) at 2.
Tht 3
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Appeal Bord held further
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...in several important areas, we agree with intervenors that the record does not support.the Licensing Board's favorable findings concerning 1.icansee's, management of r,
TMI-1....
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- The most significant issue requiring further hearing is training.
Because the safe operation of the plant is so heavily dependent upon the operators' skill, the importance of training cannot be overstated.
The cheating and related incidants called into question the adequacy and integrity of licensee's entire training and testing program.
Id. at 155, emphasis added
...the present state of the record in several areas does not permit us to make an ultimate judgment on the licensee's competence.
I d.. at 2-3, emphasis added.
Thuc, on at least two factual issues central to this case:
the adequacy of GPU's training program to meet the mandatory requirements 2/ of the Commission's Order of August, 1979 (CLI-79-8, 10 NRC 141, 143) and 2) the competence of GPU and the TMI-1 operators, the Appaal Board rulings are directly contrary to those of the Licensing Board.
Other than baldly asserting that the Commission is "likely," in GPU's view, to ultimately resolve these issues in GPU's favor (Licensee's Request at 3) GPU presents no facts nor anything approaching a reasoned basis for concluding that it has a strong likelihood of prevailing o; the merits, much less a " compelling showing."
On this score, the stay request is on
-its face insufficient.
Far more substantial stay requests have been denied.
E.g.,
United States Department of Energy et al.
(Clinch River Breeder Reactor Plant), ALAB-721, 17 URC 539, 544, 545 (1982); Toledo Edison Co. et al.
(Davis-Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-385, 5 NRC 621 (1977).
2[ These requirements are set out at ALAB-772, SI. op, at 4.
i i
w
, On the matter of the Dieckamp mailgram and the question of whether Met Ed covered up the seriousness of the accident, GPU wishes the Commisions to rely on the IE report.
The recently-released transcript of closed Commission meetings disclose that the Commissioners themselves recognized that IE's absurd treatment of this issue raised nore questions than it resolved.
Commissioner Ahearne called Mr. Stello's circumlocutions " specious,"2/ Commissioner Gilinsky termed it a " joke."d/
The most generous characterization was made by Chairman Palladino, who judged it " confusing."E/
Furthermore, while quoting the Appeal Board to the effect that it does not "suggest any wrong doing by Dieckamp," GPU omits the following critical phrase.:
"The record as only partially devaloped does not permit a determination one way or the other."
ALAB-772, SI. op. at 133.
GPU's position on the Unit I leak rate question is difficult to understand.
GPU never appealed ALAB-738, which establishes that the Unit 2 leak rate falsification is material to the question of management competence and integrity, has the potential to change the result and has not been considered heretofore.
GPU further asserted in later pleadings that it copaiders the Unit 1 leak rate issues subsumed in the issues already reopened by ALAB-738.
The Commission does not have the merits of'ALAB-738 before it; no party petitioned for review.
3/ Transcript of Closed Commission Meet.ng, 11/6/81, p. 54.
4/ Transcript of Closed Commission Meeting, 6/21/83, p. 20.
5/ Supra n.
3.
c v
. Its " stay" of'the reopened hearings has simply delayed resolution of these questics for nine months.
The most GPU says here is that it " plans" to introduce evidence on its behalf in the reopened hearings.
No elaboration, citation or affidavits are provided.
It also states in a wholly conclusory fashion, again without citations, that a recent OI investigation report is " favorable in its overall conclusions to licensee."
Licensee's Request at 5.
Where the OI investigation did not find sufficient evidence to pursue criminal charges (a conclusion UCS disputes), its conclusions were scarcely " favorable."
Indeed, the report and the accompanying interviews demonstrate that TMI-l operators systematically destroyed " bad" leak tests in contravention of NRC requirements and routinely accepted as valid test results showing negative leak rates less than I gpm, even though the operators knaw full well that such test results could not reflect actual leak rates in the plant, since a negative leak rate is impossible. E.g.
Investigation No. 1-83-028, Possible Falsification of Leak Rate Data, Ex. 38 at 9.
At best, the OI l
investigation supports a conclusion of incompetence; it is hardly vindication.
C.
Othar parties will be harmed by a stay The effect of a stay would be to delay again the time when intervenors can participate in a fair on-the-record adjudication of GPU's competence and integrity, with witnesses testifying under oath subject to cross-examination, and hence to virtually ensure that the Commission will vote on restart without the benefit of a reliable record or meaningful public t-
. participation 5/ in an issue which has baen central to this case since 1979, GPU's competence and integrity.
D.
Tha public interast
. ors danial As the Appeal Board has recognized, the questions here go to the heart of management and operator compatence, undeniably matters of grave safety concern.2/
Public safety is the para.aount public interest f actor and that interest weighs heavily against delaying resolution of these issues and/or allowing restart now and later determining whether GPU has the competenca to operate TMI-1.
Conclusion GPU has failed to meet the standards for a stay.
Its request must be denied.
Respectfully submitted, Cl E. Ms/ac Elly R. Weiss HARMON, WEISS & JORDAN 2001 S Street, N.W.
Suite 430 Washington, D.C.
20009 (202) 328-3500 General Counsel for Union of Concerned Scientists Dated: June 25, 1984 6/ UCS does not consider the opportunity to comment on all on and off-the-record material offered by the Commission as a substitute for a rational adjudication of these issues.
On the contrary we see it as simply affording GPU the opportunity to create a new " record" through submission of untested, self-serving assessments and promises.
7/ The Commission seems to have decided that management Integrity can be separated from restart.
That conclusion surely cannot be extendad, however, to management competence, which directly implicates public safety, See, e.g. ALAB-772, SI.op. at 155.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
METROPOLITAN EDISION COMPANY
)
)
Docket No. 50-289-SP (Three Mile Island Nuclear
)
ASLBP 79-429-09-SP
)
(Restart Remand on)
Station, Unit No. 1)
)
Management)
)
CERTIFICATE OF SERVICE I hareby certify that copies of the UNION OF CONCERNED SCIENTISTS' OPPOSITION TO GPU REQUEST FOR STAY (ALAB-772) have been served on the following by first class mail, postage prepaid this 25th day of June, 1984, or as otherwise indicated.
- Nunzio Palladino, Chairman Sheldon J. Wolfe U.S. Nuclear Regulatory Atomic Safety and Commission Licensing Board Panel Washington, D.C.
20555 881 West Outer Drive Oak Ridge, TN 37830
- Victor Gilinsky, Commissioner Gustave A.
Linenberger U.S. Nuclear Regulatory Atomic Safety and Commission Licensing Board Panel Wa shington,, D.C.
20555 5000 Hermitage Drive Raleigh, NC.
27612
- Frederick M. Bernthal, Commissioner Judge Gary L.
Milhollin U.S. Nuclear Regulatory 1815 Jefferson St.
Commission Madison, Wisconsin 53711 Washington, D.C.
20555
- Thomas Roberts, Commissioner Judge Gary J.
- Edles, U.S.
Nuclear Regulatory Chairman C'>
Commission Atomic Safety and Washington, D.C.
20555 Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- James Asselstine, Commissioner Judge John H.
Buck U.S.
Nuclear Regulatory Atomic Safety and Commission Licensing Appeal Board Washington, D.C.
20555 Panel U.S.
Nuclear Regulatory Ivan W.
Smith, Chairman Commission Atomic Safety and Licensing Washington, D.C.
20555 Board Panel U.S.
Nuclear'Ragulatory Commission Washington, D.C.
20555
Judge Christine N. Kohl Counsel for NRC Staff Atomic Safety and Licensing Office of Executive Legal Appeal Board Panal Director U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Judge Reginald L.
Gotchy Docketing and Service Atomic Safety and Licensing Section Appaal Board Panel Office of the Secretary U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Mrs. Marjorie Aamodt George F.
Trowbridge, R.D.
- 5 Shaw, Pittman, Potts &
Coatsville, PA 19320 Trowbridge 1800 M Street N.W.
Washington, D.C.
20036 Maxine Woelfling, Esquire Public Information and Office of Chief Counsel Resource Center Dept. of Enyt'l. Res.
1037 Maclay Street 505 Exacutive House Harrisburg, PA. 17103 P.O. Box 2357 Harrisburg, PA 17120 Louise Bradford Michael McBride, Esq.
Three Mile Island Alert LeBeouf, Lamb, Leiby &
325 Peffer Street MacCrae Harrisburg, PA 17102 1333 New Hampshire Ave.
Suite 1100 Washington, D.C.
20036 Jordan D.
Cunningham, Esq.
Fox, Farr & Cunningham 2320 North Second Street Harrisburg, PA 17110 Dr. sudith H. Johnsrud
- Jack R. Goldberg, Esq.
Dr. Chauncey Kepford Office of the Executive Environmental Coalition on Legal Director Nuclear Power
.U.S.
Nuclear Regulatory 433 Orlando Avenue Commission State College, PA. 16801 Washington, D.C.
20555 John A.
Levin, Esq.
Assistant Counsel Pennsylvania Public Utility Commission Post Office Box 3265 Harrisburg, PA 17120 Ms. Gail B.
Phelps 245 West Philadelphia Street York, PA 17404
% [ bIl~
C Ellyn R.
Weiss
$ HAND DELIVERED