ML20093N553
| ML20093N553 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 07/31/1984 |
| From: | Blake E METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| SP, NUDOCS 8408020042 | |
| Download: ML20093N553 (30) | |
Text
i.
July 31, 1984 0?lLETEg ll UNITED STATES OF AMERICA
-NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
}-
-METROPOLITAN EDISON COMPANY
)
Docket No. 50-289
)
(Restart Remand on Management)
(Thrca Mile Island Nuclear
)
Station, Unit No. 1)
)
LICENSEE'S COMMENTS ON JULY 13, 1984 MEMORANDUM AND' ORDER ON LEAD INTERVENORS'AND MOTION TO PARTIALLY EXCLUDE UCS FROM PARTICIPATION IN THE MANAGEMENT REMAND During the June 28, 1984 prehearing conference, UCS, TMIA and the Aamodts agreed to report to the Licensing Board by July 11 on a proposed assignment of lead intervenor status on the issues remanded by the Appeal Board in ALAB-772.
The Board an-ticipated an ex parte report that simply designated a proposed lead intervenor on each of the three remanded management issues.
See Tr. 27,294, 27,309 (Chairman Smith).
Because the report made on behalf of the intervenors by counsel for UCS was more than a simple listing of lead intervenors' responsibil-ities, the Board has provided an opportunity for the parties to comment on the report.
Licensee's comments follow.
8409020042 840731 PDR ADOCK 05000289 C
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Additionally,~after having evaluated the role UCS has heretofore played in the TMI-1 restart proceeding, Licensee has concluded that UCS is neither entitled nor should it be permit-ted to actively participate in two of the three subjects of the remanded management proceeding.
Accordingly, Licensee takes this opportunity to request that the Board exclude UCS from participating in the remanded proceeding on the issues of the Dieckamp mailgram and leak rate testing practices at TMI-1.
Licensee recognizes that TMIA and not UCS has sought designa-
-tion as lead intervenor on these issues.
UCS, however, re-serves the right to pursue its separate interest where TMIA does not fully represent UCS.
Further, at the June 28 prehearing conference, UCS counsel stated UCS' intention to participate in the issue of leak rate testing practices at TMI-1.
Tr. 27,281 (Jordan).
A.
Licensee's Comments on the Board's Memorandum and Order on Lead Intervenors Licensee's' general understanding of the lead intervenor
' arrangement, which is described by the Board in its July 13 Memorandum and. Order, is that in order for a non-lead interve-nor to proceed separately on an issue it must persuade the Board that it has made a good-faith attempt to consolidate its efforts with those of the designated lead intervenor but that, notwithstanding this serious attempt, it cannot consolidate '
n
without compromising a specific legitimate interest, identified to the Board.
Thus, the operative rule of the lead intervenor arrangement is that the intervenors' efforts will be consoli-dated unless an intervenor demonstrates to the Board that it is infeasible in~ tome particular instance.
The benefit of such consolidation is that the lead intervenor bears the brunt of the discovery burden and other responsibilities of participa-tion.
See Tr. 27,302 (Chairman Smith).
As to the specific designations, Licensee has no objection t.
to the designation of TMIA as lead intervenor on the issues of leak rate testing at TMI-1, and the Dieckamp mailgram.
Nor does Licensee object to parties dividing lead responsibilities among discrete areas within the training area.
With respect to the training issue, however, Licensee has several concerns about the subissues identified in conjunction with the proposed assumption of lead intervenor responsibilities.
The scope of the remanded proceeding was discussed by the parties during the June 28 prehearing conference, and estab-lished'by the Board in its Memorandum and Order Following Prehearing Conference of July 9, 1984.
As indicated in that Order, the scope of the training issue on remand is broad.
Notwithstanding its recently established breadth, intervenors already seek to expand the issue'even further, designating subissues that go beyond the limit set by the Board of "the im-plications of cheating and other program deficiencies n
specifically discussed in Section III.C of ALAB-772."
Memoran-dum and Order Following Prehearing Conference, July 9, 1984 at 2-3.
It is necessary that this expansion be stopped now to avoid potentially unnecessary discovery and time devoted to ev-identiary preparations.
With respect to TMIA's four subissues, Licensee does not disagree with the subject matter or scope of subissues (1) through (3), recognizing that the general scope of the proceed-ing is limited to the implications of cheating and other pro-gram deficiencies specifically discussed in Section III.C of ALAB-772, and keeping in mind the Board's statement that "the undisturbed findings on the training program and the Appeal Board's findings not included in the remand are res judicata in the remanded proceeding.
For example, there will not be a new cheating litigation on remand."
Id. at 3.
However, with re-spect to subissue (4), Licensee has two objections.
There is no basis in either the Board's Memorandum and Order Following Prehearing Conference, or in Section III.C of ALAB-772 to relitigate broadly "the competence and integrity of GPU management."
Clearly, the qualifications -- technical, ethical, and attitudinal -- of the training management at TMI-1 is subject to reevaluation in the remanded proceeding.
See ALAB-772, 19 N.R.C.
(May 24, 1984), slip op. at 71 and n.56.
However,-this is obviously not the thrust of subissue
('4), sus this subject is specifically identified in TMIA -
n
subissue (2).
To the extent TMIA seeks to reopen the proceed-ing on the' management competence and integrity of senior GPU officials, Licensee objects as this was plainly not the intent of the Appeal Board's remand in ALAB-772.
The inappropriateness of TMIA subissue (4)'s unsupported relitigation of senior management capability is compounded by TMIA's interest in litigating, without any threshold showing of current significance, "the history of GPU's problems with training."
ALAB-772 clearly remanded the issue of training in order for the Board to assess the implications of the 1980 and 1981 cheating incidents on the adequacy of the operator training program in existence "now".
ALAB-772, supra, slip op.
at 68; see generally id. at 63-72.
During the prehearing con-ference, TMIA's representative suggested that in ALAB-774 the Appeal Board invited an inquiry into past training deficiencies.
See Tr. 27,252 (Doroshow); see generally Tr.
27,250-63 (discussion among the parties).
However, it was in ALAB-774 that the Appeal Board unequivocally reiterated the view that, "This proceeding was not instituted to provide a forum in which to litigate directly all possible errors of the past."
ALAB-774, 19 N.R.C.
(June 19, 1984) slip op. at 8, citing ALAB-772, supra, slip op, at 11 n.7 and 22 n.15.
The Appeal Board recognized that insofar as evidence revealed by the recent investigations into past training deficiencies shed "new light on the adequacy of licensee's existing training _
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' program," ithhad already reopened the record on the adequacy of ei the existing program.,
ALAB-774, supra, slip op. at 9.
How-
%O ever, information suggesting possible pre-accident problems "is beyon'd-the scope of this particular proceeding."
M.
3 a.
TMIA is free to assess whether past' licensed operator train ng deficienbSes at TMI identified in Section III.C of
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ALAB-772'6 ave any present significance and, insofar as they do, L,
y to file direct testimony or cross-examin,e on the present sig-A(
nificance of.the'se problems to the existing training program.
HowevIer, the reopened evidentiary proceeding is not a forum available to TMIA to use as an open-ended inquiry into possible deficiendi.es in a' licensed operator training program that no longer exists.
Cf. Tr. 27,254-56 (discussion among Chairman Smith, Judge Linenberger and Ms. Doroshaw of TMIA's responsi-bility to demonstrate the relevance of the evidence it seeks to place in issue).
It is also simply incorrect for TMIA to sug-i i
gest that the scope of the remanded proceeding encompasses the sweeping subissue of "the history of GPU's problems with training," presumably because, based on this history, TMIA con-si grs it appropriate to make judgments about the competence and integrity of GPU's current senior management.
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In sum, the Board should omit TMIA subissue(4) from the s w u
3qpemanded proceedihq.
As the Board has previously stated, f
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{subissuesarelimitef.totheimplicationsofcheatingand
' other program de'ficiencies specifically discussed in Section w.
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III.C of ALAB-772y,'l Subissue (4) falls outside this scope.
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5' UCS has identified two subissues in connection with the training remand on which it proposes to assume the responsibil-ity'of lead intervenor.
UCS subissue (2), on the NRC and Com-
. pany examinations, unquestionably should be limited to Licens-ee's exams.
An inquiry into the NRC exam is permitted only to the extent justified by the degree of reliance placed on it by Licensee's consultants in their evaluation of the adequacy of Licensee's licensed operator training program.
See Memorandum and Order Fellowing Prehearing Conference, July 9, 1984 at 4-6.
Licensee requests that the Board modify subissue (2), accord-ingly.
UCS also proposes to serve as lead intervenor on UCS
- subissue (1):
"Are the operators equipped to safely operate j
the plant particularly in emergency situations?"
UCS subissae (1) is unacceptably ambiguous and thus subject to different and not necessarily appropriate interpretations.
Licensee would not oppose UCS subissue (1) if it were modified so as to make clear that the issue here is training and not the adequacy of the hardware or the procedures used by the operators.
Licensee proposes that the Board substitute the word " trained" for the word " equipped," and insert "in accordance with approved proce-dures" after the word " plant."
If UCS opposes these modifica-tions, Licensee would object to the admission of the subissue as stated, as it invokes litigation of issues that not only are res judicata, but were litigated in a wholly separate part of u-.
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hb,t/ proceeding (by[lamongothers, UCS).
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Licdds'ee'does not believe that the remanded proceeding on O,
training 1,n/ any way' encompasses'another 1 ok at the substantive 9
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g adequacy of emergency operating procedures or the legitimacy of
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p operator practices in the control room.
Rather, ALAB-772 makes O;
4 pl[in the fact that the. Board should consider the quality of 1
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,,the current program to train licensed operators at TMI, given
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I the operational procedureir and practices in place today.
- See, s
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ALAB-722, supra, slip op.*at.53 (emphasis added) ("(I]s athe instruction adequate to prepare the operators to operate
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(1) and (2) n t i.rf L:.censee's comments on UCS' proposcd subissues
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a yjt. (_ H I: assume particular importance in the light of.{JCS' prior partic-i ipation in'this proceeding.
UCS was an active participant in 6
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- / the TMI-1 restart procceding "on plant des'ign and proce-lures.
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!LBP-81-59, 14 N.R.C. 1211 (1983)TALAB-729, 17 N.R.C.
814 Qf(1983); CLI-84-11 (July 26.,1984).
However, UCS did not par-i,,
-.,A j,icipate at all in the TMI-1 restart proceeding, in$1uding the
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reopened proceeding, on management issues.
Not..surpri singly, then, UCS did not file proposed fihdings pf fact of conclusions g
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s of ' law' on any of the management issues before either the Li-i
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censing Board ' or the Special Master
UCS did file comments J"*
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gf.. with the Licensing Board on'the Special'Maste !s Report, and
' filed a brief with'the Appeal Board after the Licensing Board's decision in the; reopened proceeding.
See LBP-82-56, 16 N.R.C.
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281 (1982).
UCS' main concern, however, was that the findings of the Special Master and the Licensing Eoard on management
= issues justified reconsideration of the Licensing Board's prior
' findings on design.
At the June 28 prehearing conference, counsel for UCS in-dicated that UCS was planning to take a very active role in the reopened manageme;;c proceeding on training and leak rate test
. practices at TMI-1.1/
Tr. 27,280-81 (Jordan).
This keen in-terest in the management proceeding was surprising, in view of UCS' complete disinterest in the initial litigation of the man-agement issues.2/
UCS explains its belated interest in the training issue as, in effect, a necessary outgrowth of its par-ticipation in the so-called hardware design proceedings.
Tr.
'27,280-81, 27,286-87 (Jordan).
In UCS' view, its pursuit of issues such as feed and bleed, and preventing premature opera-tor termination of safety systems, supports its active role in training now.
UCS offers no explanation whatsoever for its 1/
. UCS does not " foresee" any pCr cicipa' ion in the remand proceeding on the Dieckamp mailgram issue.
Tr. 27,281 (Jordan).
2/
A more recent illustration of UCS' disinterest in manage-ment issues was its failure to respond to three motions to re-open the management proceeding filed by the Aamodts and TMIA.
Notwithstanding this default, UCS subsequently sought and obtained permission to address the Appeal Board on these mo-tions during the scheduled oral argument.
UCS then proceeded not to attend the oral argument.
See Appeal Board Oral Argu-ment, Tr. 3 (July 28, 1983); UCS Comments on Appeal Board Order of June 16, 1983 (July 1, 1983).
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1
sudden interest in the management issue of leak rate test prac-tices at TMI-1.
Although UCS does not propose itself as a lead intervenor on this subject, it does plan to participate in the remanded proceeding on this management capability issue.
Tr.
- 27,281-(Jordan).
UCS' argument has a superficial appeal because of the ob-vious interdependence between hardware and its proper use, i.e.,
operators must be trained to use the hardware properly.3/
In fact, however, UCS has now turned its previous interest in operator-related hardware issues completely on its head.
The lynchpin of UCS' position during the design proceeding was that operators ought not be relied on; hardware should, in effect, be operator-proof.
- See, e.g.,
Tr. 6,241-336 (UCS' cross-examination of P.
Clark, M. Ross and E.
Patterson on premature operator termination of safety systems); see also Pollard, ff.
- Tr. 6,410 (UCS testimony on UCS Contention No. 10, which does not even mention training (i.e.,
inadequacies) as a basis for l
3/
During the reopened design proceeding before the Appeal Board, Judge Buck observed, "[W] hat this hearing is really about,.as I understand it, is whether the plant is adequately built, designed, and th.', sort of thing, to operate The final question comes down to whether the operators have, one, the proper guidance; two, the proper training; and fi-nally, that they do what they have been told to do.
But that is an entirely different' subject."
App. Tr. 663-64 (March 17, 1983); see also ALAB-729, 17 N.R.C.
814 at 854 n.177 ("We ap-preciate that operators must be properly trained to employ the feed and bleed method.
The adequacy of such training will be examined in the management phase of the case and has not been considered here."). b n
t.
the need for uninterferable automatically-initiated safety sys-tem hardware).4/
Consistent with this approach, UCS did not participate at
.all in the. original litigation of the substantive adequacy of
- Licensee's management and personnel, including the TMI operator training program and the NRC exam, or in the litigC en of the cheating issues.
In fact, UCS has disclaimed familiarity with the management record.
UCS Brief on Exceptions to Partial Ini-tial Decision (Reopened Proceeding) at 9-10 (Sept. 30, 1982).5/
In'short, although training "related" to UCS' interests, it was not the subject of. inquiry during the design proceeding nor has UCS exhibited a genuine interest in the subject.s/
4/
It should be noted that Licensee never concurred in UCS' desire to " operator-proof" TMI-1.
- See, e.g.,
Testimony of P. Clark, M.
Ross and E. Peterson ff. Tr. 6,225 (Nov. 20, 1980) at'4 (In response to UCS Contention 10, Clark states, " Licensee completely disagrees with the basic philosophy underlying this contention.
[T]he real need is to orepare the operators to-correctly diagnose the plant condition end carry out the ap-
.propriate actions. ")
As the Appeal Board has stated and Licensee has repeatedly acknowledged, " proper training is es-sential to the safe operation of the plant and requires the closest scrutiny."
ALAB-772, supra, slip op. at 76.
- Thus, Licensee.has always disputed the underlying premise of UCS' po-sition on various hardware issues, viz., that operators would not need to be well trained.
This fact is no more true today than it was five years ago.
5/
Evidence of this unfamiliarity can be found in numerous UCS pleadings on the import of the Special Master's Report, in which UCS invariably cites from the various decisions and not from the record.
- See, e.g.,
UCS Comments on Report of the Spe-cial Master, May 18, 1982; UCS' Brief on Exceptions to Pat 'al Initial Decision (Roopened Proceeding), Sept. 30, 1982.
p/
There are a number of examples of the relationship bu-difference between training and the issues litigated during the (Continued Next Page) a
When UCS filed contentions in the restart proceeding, UCS could have asserted that hardware ought to be operator-proof but, to the extent it is not, training and other managment issues are important as well.
It chose not to make these lat-
- ter arguments, putting all of its eggs in the hardware basket.
UCS' contentions speak for themselves.
They were all hardware contentions.
The design proceeding has not been' reopened.
Neither is the assumption underlying aspects of the Licensing Board, Ap-peal Board and Commission decision on design now subject to (Continued) design proceeding.
The closest link was in response to Board Question No. 11 on operator performance during transients and accidents, when Licensee presented testimony on the Abnormal Transient Operator Guidelines-(ATOG) program.
Broughton, ff.
Tr. 10,941 (Jan. 27, 1981); see also LBP-81-32, 14 N.R.C.
- 381, 449 (1981). (1-188).
However, UCS did not appear at the hear-ing when this testimony was presented, nor does Licensee be-lieve any of.UCS' findings addressed this issue.
In response to UCS Contention 7 on water level instrumentation, Michael Ross testified about training given to operators on obtaining and interpreting the status of core cooling.
See Keaton, Ross and Jones, ff. Tr. 10,619 at 14-19.
Although other parties asked questions of the witnesses on this testimony, UCS did not as -it was not even in attendance while its Contention 7 was being litigated.
See also Tr. 7,420-24 (Keaton); Joyce, ff.
Tr. 7,467 (Dec. 4, 1980) at 4-5 (discussion of operators' need for computers in connection with computer hardware issue (Sholly Contention 13 and ECNP Contention la); UCS again not present for this part of design hearings); Tr. 4,777-804 (UCS cross-examination of B&W's Robert Jones on the complexity of operator actions needed in feed and bleed mode.
Notwithstand-ing the issue's " relationship" to training, there is no specif-ic reference to the adequacy of training; rather, UCS' focus is on not allowing this operator action); Tr. 4,928-29 (UCS cross-examination of W. Jensen). R
ch'allenge.
Stated another way, if Licensee cannot establish that its-operator training program is adequate, it will not be able to operate TMI-1.
It cannot compensate for this inadequa-cy and operate the plant anyway by making the hardware modifi-cations favored by UCS.
In sum, the UCS design issues, no longer pending before
-the Commission, are not at issue here.
Counsel for UCS sug-gests this is not the case when he says the training issue is central to UCS' concerns which "had really not been resolved by the. proceeding in which UCS had participated."
Tr. 27,288 (Jordan).
This is incorrect.
The design issues have been re-solved; however, not necessarily as UCS would have liked them to be. -But this remanded proceeding is not a back door into reconsideration of the issues raised by UCS during the design proceeding.
But see Tr. 27,286-87 (counsel for UCS suggests cheating findings raise questions about the remedies to the op-erator action issues litigated during the design proceeding).
The Board should not allow UCS' participation in the remanded training issues to devolve into a relitigation of the issues of plant design and procedures that have already been decided.,
n
B.
Motion to Partially Exclude UCS From Participation in the Management Remand UCS ought not be permitted to participate in issues to be heard in this remanded proceeding that have absolutely no rela-tionship to UCS' prior interests.
Those issues are the m
- Dieckamp mailgram and leak rate test practices at TMI-1.
What-ever claim of prior interest UCS may now assert as to training, there is no basis for claiming such an interest in other man-agement issues.
1.
UCS Is Not Entitled To Participate In These Management Issues As A Matter Of Right In NRC practice, an intervenor that wholly fails to par-ticipate-in the consideration of a particular issue at the ini-
- tial hearing stage, and that fails to file proposed findings of fact or conclusions of law on the issue, cannot claim a right to later litigate the issue on appeal or on remand.
See United States Department of Energy Project Management Corporation Tennessee Valley Authority (Clinch River Breeder Reactor Plant), ALAB-761, 19 N.R.C.
487 (1984); Public Service Co. of
' ' Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-493, 8 N.R.C.
253 (1978); Northern States Power Company-(Prairie Island Neulear Generating Plant, Units 1 and 2), ALAB-244, 8 A.E.C. 857 (1974); see also 10 C.F.R.
SS 2.707, 2.754(b).
After all, " intervention in an NRC adjudicatory.
f
g:
s proceeding does not carry with it a license to step into and out of the-consideration of a particular issue at will."
. Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-288, 2 N.R.C.
390, 393
'(1978).
This default principle serves the purposes of NRC pro-cedure by requiring p'.rties to meet their responsibilities and Inr giving the Licensing Board the benefit of a party's contri-bution in the first instance, preventing needless further litt-gation.
See Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-691, 16 N.R.C.
897, 906, 907 (1982).
Thus in Marble Hill, the intervenor Save The Valley (STV) indicated at the initial hearing that it did not wish to be in-volved in the environmental issue of the location of the site p
boundary for purposes of state jurisdiction under the Federal Water Pollution Control Act (FWPCA).
ALAB-493, supra, 8 N.R.C.
253, 268.
STV did participate in the question of the propriety of state FWPCA certification proceedings, however, to which the
' site-boundary issue was relevant.
Id.
Subsequently, the
. boundary' issue was appealed and remanded for further evidence before the Licensing Board.
STV claimed that the procedures adopted by the Licensing Board on remand infringed STV's right to participate in the boundary issue.
However, the Appeal Board held that STV was not entitled to participate in the re-manded hearing as a-matter of right since "[ajt the initial hearing, Save the Valley submitted no contentions, proffered no L n
a r
evidence, proposed no findings, and suggested no conclusions of law to the Board below respecting the boundary's location."7/
-Id.
at 268-69.
The Appeal Board noted that the question of state FWPCA certification, which STV did litigate, was relevant to the boundary issue, but it determined that this made no dif-
'ference because STV had previously indicated that its interest was only in the former, and not in the latter issue.
Id. at 268.
A very recent case also is illustrative.
In Clinch River, the application to build a breeder reactor was opposed by in-
'tervenors, NRDC and the Sierra Club.
ALAB-761, supra, 19 N.R.C..at 489.
The Licensing Board issued applicants a limited work authorization (LWA); NRDC and the Sierra Club appealed this decision.
Id.
The Licensing Board meanwhile went forward with the litigation of other issues.
However, because of lim-ited resources, NRDC and the Sierra Club obtained permission from the Board to withdraw their contentions relating to these non-LWA issues and, accordingly, were dismissed as parties to the proceeding.
Id.
When Congress cut off funds for the 7/.
The Appeal Board aldo noted that STV failed to except from the Licensing Board's ruling.
However, this could not be a
-critical ~ factor because once STV failed to participate in the consideration of the boundary issue and failed to file findings of fact or conclusions of law on the issue, it lost any right to appeal the Licensing Board's decision.
Northern States
' Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-244, 8 A.E.C. 857, 864 (1974). 1 q
4 n
~
Clinch River. reactor, the Appeal Board ~ terminated its appellate proceedings;-however, it remanded the LWA issues to tha Licens-
-ing Board to determine the necessity for imposing measures to
_ ameliorate _the' environmental impact of site preparations.
NRDC Lthen filed a motion for permission.to reenter the proceeding to
' raise [the question of the effect of Congress' action on the
=non-LWAlissues.
The Licensing Board ruled that:
(1) NRDC and-the: Sierra Club were entitled to make only limited appearance r
statements:with respect to the site redress issue; and (2) NRDC
- would not-b'e' allowed to participate at all in the non-LWA Lissues.
Id. at 490.
Intervenors appealed these rulings.
The
- Appeal Board reversed the first ruling, holding that both in-y tervenors were entitled'to participate fully in the site re-dress issue;;however, it affirmed the second ruling.
First, the Appeal Board denitd that its remand of the LWA segment.of the case was intended in any way to restrict the participation of NRDC and the Sierra Club in LWA issues.
Id.
at.491..Second, the Appeal Board noted that the intervenors had previously-indicated an interest in the' site redress issue.
e Id. at 492. -Third, the Appeal Board stressed that intervenors had been active participants in the LWA segment of the' case.
Merely because they had concentrated their efforts on other LWA issues-was no reason to prevent them from participating in the site redress issue because that issue was part of the LWA seg-ment and it-had just come up.
Id.
, d
However, with respect to NRDC's motion to reenter on non-LWA issues, the Appeal Board upheld the Licensing Board.
By withdrawing their contentions on the non-LWA issues, NRDC (and the Sierra Club) had accepted the risk that these issues would be decided adversely to their interests.
Id. at 493.
Nor could NRDC base its motion to reenter on the grounds that Congress' action was a new development.
Such an action was "not one that should have been wholly unanticipated when the intervenors withdrew."
Id.
The default principle invoked in Marble Hill and Clinch River is applicable here.
UCS declined to participate at all in-the'TMI-1 management proceeding.
Similarly, it failed to
-file findings of fact or conclusions of law on management issues, either before the Licensing Board or the Special Mas-ter.
The only remanded management issue at all relevant to the design issues-that UCS did litigate is the training issue.
The Dieckamp mailgram and leak rate practices at TMI-l have ab-solutely no nexus to UCS' design contentions.
Like the inter-venor in Marble Hill, UCS is not entitled to participate in the remanded management proceeding on these issues because it is indisputable that UCS chose to stay out of the management pro-ceeding and to participate only in the litigation of design issues.
Furthermore, the relevance of management issues to design concerns is not any more apparent now than it was when the <
n
m x-initial hearings took place.
Unlike the intervenors in Clinch River (with respect to site redress), UCS did not vigorously participate in one aspect of the case and then later seek to
-participate in a new issue that arose in that aspect; rather, UCS. refrained from any direct participation at all in the ini-tial TMI-1 restart proceeding on management issues litigated before the Licensing Board.
UCS also did not file exceptions to this decision before the Appeal Board.g/
UCS has character-ized its interest in the design proceeding as encompassing an interest in training and operator qualifications.
See Tr.
27,286-87 (Jordan).
However, it has not even attempted to jus-
-tify its participation in either of the other two remanded issues.
In sum, UCS improperly seeks to enter an aspect of the case in which to date it deliberately chose not to participate, just as did NRDC in the Clinch River case (with respect to non-LWA issues).9/
Under these circumstances, UCS has clearly g/
As previously stated, UCS did file comments before the Li-censing Board on the Report of the Special Master.
However, it did not take'part at all in the adjudication of the reopened proceeding'on cheating issues.
- See, e.g.,
Union of Concerned Scientists' Brief on Exceptions to Partial Initial Decision (Reopened Proceeding) at 9-10 (Sept. 30, 1982) (admitting non-participation in the reopened proceeding and disclaiming ability to engage in a detailed discussion of the evidence).
Nor did UCS file proposed findings of fact or conclusions of law in the reopened proceeding.
9/
Indeed, the instant case is a stronger one for default than was Clinch River.
In that case NRDC was not allowed to (Continued Next Page) n
defaulted and is not entitled to participate in the remanded TMI-1 management issues.
2.
UCS Should Not Se Allowed To Participate In Portions Of The Remanded Management Proceeding As A Matter Of Discretion Even though UCS' default has deprived it of the right to participation in the remand of management issues, the Licensing Board may nonetheless allow it to participate in the litigation of these issues as a matter of discretion.
In deciding whether to exercise its discretion, the Licensing Board is guided by the five= factors for evaluation of late intervention which are set forth in 10 C.F.R. $ 2.714(a)(1).10/
See Clinch River, ALAB-761, supra, 19 N.R.C.
at 493-94.
Consideration of these factors demonstrates that UCS should not be allowed to partici-pate in that portion of the remanded management proceeding devoted to the Dieckamp mailgram and TMI-1 leak rate issues.
(Continued) reenter the non-LWA issues because its claimed interest, i.e.,
the effect of Congress cutting off funds, was foreseeable at the time it chose not to pursue those issues.
Here UCS' claimed interest was not merely foreseeable, but actually
~
present, at the time of the initial management issue hearings.
10/
These factors are:
(i) good cause, if any, for failure to file on time; (ii) the availability of other means whereby the petitioner's interest will be protected; (iii) the extent to which petitioner's participation may reasonably be expected to assist in developing a sound record; (iv) the extent to which the petitioner's interest will be represented by other parties;
~
and (v) the extent to which the petitioner's participation will broaden the issues or delay the proceeding. n
x
'UCS has shown no good cause for its failure to participate in' the unnagement proceedings at an earlier stage.
10 C.F.R. 5 2.714(a)(1)(1).
UCS argues that it has always been inter-ested in management issues by virtue of their relationship to
. design' issues.
See Tr. 27,286-87 (Jordan).
Even here, how-
.ever,-UCS' arguments are limited to the training remand.
UCS
-offers no rationale for its interest in the other two remanded issues.
UCS freely admits it has not participated previously in.the extensive litigation of Licensee's management capabili-ty.
See Union of Concerned Scientists' Brief on Exceptions to Partial Initial Decision (Reopened Proceeding) at 9-10 (Sept.
30, 1982).
Assuming arquendo that UCS has always been " inter-ested" in management issues, Licensee fails to see how this
, helps.UCS' position in the least.
If UCS had not been inter-
.ested in management issues when the initial hearings took place but is now interested because of the occurrence of some unforeseeable event, UCS might have a persuasive argument for
.being allowed to participate in the remanded management pro-ceeding.
Cf. Clinch' River, supra, slip op. at 9.
But this is not the case.
UCS could have participated at the initial hear-ings, see Tr. 27,289 (J. Doroshow, counsel for TMIA); it chose not to.
This choice reflected a deliberate decision on UCS' part that, notwithstanding its interest in design issues, it
- did not wish to participate in management issues.
As in Clinch River, by making this choice, UCS accepted the risk that the :
e
f-management issues would be decided adversely to its perceived interest.
ALAB-761, supra, slip op. at 10.11/
UCS' position is not aided by the fact that it filed com-ments on the Special Master's Report and a brief on the Licens-ing Board's decision of July 27, 1982.
These filings show only that UCS belatedly became interested in the results of the cheating proceedings, not that it participated or even intended to. participate in the litigation of Licensee's management capa-bility.
Indeed, UCS disclaimed the ability even to argue the management evidentiary record.
See Union of Concerned Scien-tists' Brief on Exceptions to Partial Initial Decision (Re-opened Proceeding) at 9-10 (Sept. 30, 1982).12/
In short, UCS' 11/
The legal basis for Licensee's motion to exclude UCS from participating in the litigation of TMI-1 leak rate testing.
practices and the Dieckamp mailgram issue applies equally to the remand on training; that is, to date, UCS has played no role in the development of the management record on this issue.
However,'in view of the potential delay in the schedule estab-lished by the Board which Licensee believes might result from an effort to exclude UCS from participating in the training issue, Licensee has opted not to pursue this course.
12/
Furthermore, UCS was not entitled to file these briefs --
it had not filed-proposed findings of fact or conclusions of law before either the Licensing Board or the Special Master.
Prairie' Island, ALAB-244, supra, 8 A.E.C.
at 864.
Licensee largely ignored these filings, because they represented nothing more'than a rehashing of the arguments and conclusions of others.
See Licensee's Reply to Comments of Other Parties on the Special Master's Report and the Atomic Safety and Licensing
~
-Board's Tentative Final Draft at 3 (June 1, 1982)
(" Comments like those of UCS, which only rehearse the Special Master's Re-port and provide no insights into the accuracy of the Report, are of no value and should be ignored"); Licensee's Brief in (Continued Next Page).
1
4.--
.i gratuitous participation in the " significance" of the Special Master's Report does not cure its voluntary nonparticipation in the development of an adequate management record.
UCS must have been well aware that its failure to partici-pate in_the initial management hearings constituted a default on its right to participate in the issues at a future date.
See Metropolitan Edison Company (Three Mile Island Nuclear Sta-tion, Unit 1), LBP-81-32, 14 N.R.C.
381, 389 (1981) (Partial Initial Decision on Management Issues) ("[t]he parties to this proceeding were cautioned on several occasions that the Board requires the parties to file proposed findings of fact and con-clusions of law pursuant to 10 C.F.R. 2.754(a) and that failure to file would be deemed a default by that participant as to the respective issues in accordance with section 2.754(b)"); see also Special Master's Memorandum and Order Following a Confer-ence Among the Parties at 6 (Oct.
8, 1981) ("all parties are
- required to submit proposed findings
[and] [i]f a party does not submit proposed findings on a particular issue, that party will be in default, and will thereby forfeit the right to have its position considered on that issue").
Given these (Continued)
Opposition to Appellants' Briefs on Exceptions Related to Man-agement Capability at n.133 (Nov. 15, 1982) (UCS' arguments on training encompassed by those of other parties and therefore not separately discussed by Licensee). O
b['
, repeated warnings, even a pro se intervenor, much less an expe-rienced intervenor represented by counsel, cannot claim igno-rance;of its responsibilities.
4 Thus,Jit is clear that UCS cannot show good cause for its failure to participate in the management proceedings earlier.
Since[it is without'a good excuse, UCS should only be allowed D
to participate.if it can make a very strong showing with re-spect to'the other late intervention factors specified in
- 5 2.714(a)(1).
See Nuclear Fuel Services, Inc. (West Valley
. Reprocessing Plant), CLI-75-4, l'N.R.C. 273 (1975).
These fac-
' tors provide no such support for UCS.
':There is a great deal of reason to believe that UCS'
" newfound interest in Licensee's management capability will be adequately protected without allowing it-to participate in the
' remanded management; proceeding.
See 10 C.F.R.
l 2.714(a)(1)(ii)1and (iv).
TMIA and the Aamodts have aggres-sively-pursued the issues: involved in this remanded proceeding
- for.the many_ years'of its litigation.13/
There is no reason to
+
- believe that they will not continue to litigate the management issues vigorously and resourcefully.
UCS has-previously been jk3sf sDuring the prehearing conference, the Aamodts discussed the possibility of their dropping out or, at least, taking a lower profile in this remand..See Tr. 27,280, 27,282-83,
'cg l27,292A-93 (Mrs.-Aamodt).. To date, however, the.Aamodts have
-g
~
- not given any indication of waiving any of their rights as a party to this proceeding, although they have not assumed the role of lead intervenor on any of the remanded issues.
, s I-
- quite content to allow these intervenors the responsibility of developing and arguing the management record.
See Union of Concerned Scientists' Brief on Exceptions to Partial Initial Decision (Reopened Proceeding) at 9 (Sept. 30, 1982).
Further-more, in this remand, the Licensing Board has an independent responsibility to ensure that the record is properly complete, as specified in ALAB-772.
Given these facts, it is impossible to say that UCS' " interests" could not be protected without its participation in the remanded proceeding.
The same arguments suggest that UCS' participation would not sigr.ificantly con-
' tribute to-the develoment of a sound record.
See 10 C.F.R. -5 2.714(a)(1)(iii).
Finally, the fifth late intervention factor also cuts against UCS' participation.
See 10 C.F.R. 5 2.714(a)(1)(v).
The' addition of another party to a multi-party proceeding vir-tually by definition broadens the issues and uses up a consid-erable amount of time.
This is true notwithstanding UCS' non-lead intervenor status on the two issues in question.
Al-
' ready, there is every indication that UCS' participation will broaden the issues and cause delays.
For example, during the prehearing conference, UCS unabashedly proposed that the re-manded proceeding encompass nonlicensed operator training, not-w'thstanding its admitted total lack of basis in ALAB-772 for so_ broadening the issues.
See Tr. 27,230, 27,333 (Jordan).
UCS also proposed an extraordinarily lengthy discovery period,
- s 3
for the remanded proceeding.
Tr. 27,296-97 (Jordan).
In addi-
. tion, UCS-maintained that it intended to call witnesses; how-
.ever, "[t] hey are going to need time that of course the Licens-ee's witnesses-do not need, having been involved in it for a considerable period."
Tr. 27,304 (Jordan).
In short, it is
~
reasonable to conclude that UCS' participation, if at all suc-cessful, will broaden the issues and delay the proceeding.
In summary, UCS has vigorously pursued the interests it defined for itself very early in this lengthy proceeding.
Those interests were hardware interests.
Licensee believes th'at the record reflects UCS' consistent pursuit of those but not other issues.
UCS has never demonstrated a genuine inter-est in Licensee's management capability, nor did they partici-pate in the litigation of management issues in the restart pro-ceeding.
Under these circumstances, and in view of UCS' admitted ignorance of the underlying record that is at issue r
w;
- f r i
S.
here,1the Licensing Board should exclude UCS from participation in the issues of the Dieckamp mailgram and the TMI-1 leak rate testing practices.
Respectfully submitted,
%f t. tkA),
Ernest L.
- Blake, Jr.,
P.C.
Deborah B. Bauser SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.
Washington, D.C.
20036 (202) 822-1000 Counsel for Licensee Dated:
_ July 31, 1984 j i G
July 31, 1984 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289
)
(Restart Remand on Management)
(Three Mile Island Nuclear
)
Station, Unit No. 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Comments on July 13, 1984 Memorandum and Order on Lead Intervenors and Mo-tion'to Partially Exclude UCS From Participation in the Manage-ment Remand" were served this 31st day of July, 1984, by depos-
.it in the U.S. mail, first class, postage prepaid, to the parties on the attached Service List.
O& k. h'4%
Deborah B. Bauser 3
b
rk UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289 SP
)
Restart
'(Three Mile Island Nuclear
)
Station, Unit No. 1)
)
Service List Administrative Judge Chairman, Atomic Safety &
Ivan W. Smith Licensing Board Panel Chairman, Atomic Safety &
U.S. Nuclear Regulatory Licensing Board Commission
-U.S.' Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Chairman, Atomic Safety &
Licensing Appeal Board Panel Administrative Judge U.S. Nuclear Regulatory Sheldon J. Wolfe Commission Atomic Safety & Licensing Washingto..,
D.C.
20555 Board U.S. Nuclear Regulatory Thomas Y. Au, Esq.
Commission Office of Chief Counsel Washington, D.C.
20555 Dept. of Environmental Resources 505 Executive House Administrative Judge P.O. Box 2357 Gustave A. Linenberger, Jr.
Harrisburg, PA 17120 Atomic Safety & Licensing
(
Board l
U.S. Nuclear Regulatory L
Washington, D.C.
20555 Jack Goldberg, Esq.
Office of Executive Legal Dtr.
i U.S. Nuclear Regulatory Commission Washington, D.C.
20555 i
O Docketing & Service Section Ellyn R. Weiss, Esq.
Office of the Secretary William S. Jordan, III, Esq.
U.S. Nuclear Regulatory Harmon, Weiss & Jordan Commission 2001 S Street N.W.,
Suite 430 Washington, D.C.
20555 Washington, D.C.
20009 Mr. Norman Aamodt Lynne Bernabei, Esq.
R.
D.
5 Government Accountability Coatesville, PA 19320 Project 1555 Connecticut Avenue Joanne Doroshow, Esq.
Washington, D.C.
20009 The Christic Institute 1324 North Capitol Street Washington, D.C.
20002 Ms. Louise Bradford TMI ALERT Mr. Henry D.
Hukill 1011 Green Street Vice President Harrisburg, PA 17102 GPU Nuclear Corporation P.O.
Box 480 Administrative Judge Middletown, PA 17057 Gary J. Edles, Chairman Atomic Safety & Licensing Michael F. McBride, Esq.
Appeal Board LeBoeuf, Lamb, Leiby & MacRae U.S. Nuclear Regulatory 1333 New Hampshire Avenue, N.W.
Commission Suite 1100 Washington, D.C.
20555 Washington, D.C.
20036 Administrative Judge Michael W. Maupin, Esq.
John H. Buck Hunton & Williams Atomic Safety & Licensing 707 East Main Street Appeal Board P.O. Box 1535 U.S. Nuclear Regulatory Richmond, VA 23212 Commission Washington, D.C.
20555 Administrative Judge Christine N. Kohl Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Washington, D.C.
20555 e
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