ML20107C481

Reply to Ucs 840726 Comments on Restart.Nrc Must Lift Immediately Effective Suspension of OL & Amend Ol. Certificate of Svc Encl

ML20107C481
Person / Time
Site:	Three Mile Island
Issue date:	08/10/1984
From:	Trowbridge G GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:
Shared Package
ML20107C446	List: ML20107C481
References
SP, NUDOCS 8411020545
Download: ML20107C481 (29)

Text

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I August 10, 1984 3

, Attachment A COCKETEP U5hR^ ,

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIOY4 tDV -2 No:48 BEFORE THE COMMISSION .1 C ,,.a (Jhki 83 s Sct:,

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In the Matter of )

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METROPOLITAN EDISON COMPANY ) Docket No. 50-289

) - (_Re s t art )

(Three Mile Island Nuclear )

Station, Unit No. 1) )

)

LICENSEE REPLY TO UCS COMMENTS ON TMI-1 RESTART The comments of.the Union of Concerned Scientists (UCS) on restart of TMI-1 offered on July 26, 1984,1/ reflect deep mis-understan' dings of the procedural posture of the TMI-1 proceed-ings and applicable law. UCS contends that allowing restart now would:

1. Violate the Commission's own mandated procedures, since the Commission has allegedly provided that any restart decision will wait until after a favorable decision by the Li-censing Board is completed, and the Appeal Soard has remanded certain management issues for examination of further evidence; 1/ UCS Comments on TMI-1 Restart Immediate Effectiveness, July 26, 1984, (hereinafter "UCS Comments").

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2. ' Violate statutory procedural. requirements, since the restart necessarily involves amending the TMI-l operating license, which can be done or.ly through formal, adjudicatory proceedings, and'with the Appeal' Board remand such proceedings have not yet been completed;

3. Also violate. statutory procedural requirements, be-cause lifting the suspension is allegedly itself a license-amendment which must be adopted solely through a formal pro-ceeding, and the Commission has indicated it would base its de-cision in part on evidence outside the formal hearing record;

4. Violate the Commissio.'.'s own procedural regulations; and

5. Violate the requirements of Due Process of Law, if the Commission relies on material outside the formal hearing record.

As explained below, none of these contentions are valid.

BACKGROUND In response to the accident at Three Mile Island, Unit 2 (TMI-2) in March, 1979, the Commission issued an immediately effective order on July 2, 1979 suspending the operating license for Unit 1 (TMI-1) pending a public hearing and further order of the Commission. In the Matter of Metropolitan Edison Company, Docket No. 50-289, July 2, 1979 (" July 2nd Order").

Because_this suspension was immediately effective, the licensee l

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lost its usual rights to advance notice and hearing before'such-suspension.

10 C.F.R. 2.201-2.202;'42 U.S.C. 5 2239; 5 U.S.C.

$ 558(c). The Commission had the_ legal authority to bypass such rights only because it found that the public health, in-terest or safety required.the suspension to be immediately-

~e ffective. :JulyL2nd Order; In the Matter of Metropolitan Edison Company, CLI-79-8, 10 NRC 141 at 146,.149, (August 9,

-1979); 10 C.F.R. 2.201(c),.2~202(f); 5 U.S.C.

. 558(c).

-Since that. time,.the Commission has clearlv and consis-tently reserved to itself the decision as to whether and when to-lift the immediately effective. suspension of TMI-l opera-tions. In the very same August-9, 1979 Order which established the formal, on-the-record, Licensing Board proceedings, the Commission said:

The Commission shall issue an order lifting immediate effectiveness'[of the license suspension) if it determines that the pub-lic health, safety o'r interest no longer require immediate effectiveness. The Com-mission's decision'on that question shall not affect its direct appellate review of the merits of the Board's decision. 10 NRC at 149.

Later, when the Commission established a separate Appeal Board for the Licensing Board proceedings, it again emphasized that it reserved the right to lift the suspension itself without waiting for any final Appeal Board decision. In the Matter of

[ Metropolitan Edision Company, CLI-81-19, 14 NRC 304, 305-306 (August 20, 1981). A later Order stated: "The Commission'is j the exclusive administrative body with the power to determine l

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whether Unit 1 may restart during the pendency of any possible appeals of a Board decision before the Atomic Safety and Li-censing Appeal Board." In the Matter of Metropolitan Edison Company, CLI-81-34 14, NRC 1097, 1098 (December 23, 1981). The

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Order ruled-that the Appeal Board did not have authority to

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stay a Commission ruling on lifting the suspension and allowing restart, explaining in effect that the decision as to lifting the suspension was separate from the formal proceeding before the Licensing and Appeal Boards. The Order stated:

The Commission has decided against Appeal Board stay authority because this case dif-fers significantly from normal initial op-erating license cases. Here, a decision by the Commission rather than granting effec-tiveness to a Licensing Board decision, would be determining, based on that deci-sion and other factors, whether the con-cerns which pronpted 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 suspension, then the Commission is required by law -- what-ever the nature of the Licensing Board's decisien -- to lift that suspension immedi-ately. This is a matter peculiarly within the Commission's knowledge and involving the most discretionary aspects of its en-forcement authority. 14 NRC at 1098.

Consequently, the decision as to whether and when to lift the immediately effective-suspension is being made in a pro-ceeding before the Commission itself separate and distinct from the formal proceeding before the Licensing and Appeal Boards.

The court in Philadelphia Newspapers, Inc. v. Nuclear Regulatory Commission, 727 F. 2d 1195 (D.C. Cir. 1984)

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recognized the distinction between'these two proceedings, in fact holding-that they were separate and distinct. The.need to maintain 1two separate proceedings was created when the TMI-1 license suspension was imposed on an immediately effective basis. The licensee, as discussed above, couldlbe deprived of .

-its prior ~right'to notice and hearing only because the Commis-sion found the public health, safety or interest so required.

When the basis for these public concerns dissolved, the-Commis-sion's authority to maintain the license suspension without prior notice'and hearing would also dissolve. The Commission, therefore, had to maintain its own inquiry to monitor whether such special conditions continued and whether the suspension could legally remain in force, without waiting for any Licens-ing or Appeal Board proceedings to conclude.

In allowing restart now, the Commission would be taking two, separate, distinct actions relating to the two different proceedings:

(1) Lifting the immediately effective suspension of the TMI-1 operating license, in the informal proceeding before.the Commission itself; and (2) Amending the TMI-1 operating license, on the basis of the formal, on-the-record, Licensing Board proceedings in which all parties have participated and which, despite the Appeal Board remand, still provide all support necessary for the amendments.

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ARGUMENT

'I. THE COMMISSION HAS' COMPLIED WITH ALL PROCEDURE REQUIRED TO-DECIDE NOW TO LIFT THE IMMEDIATELY EFFECTIVE SUSPENSION OF THE TMI-1 OPERATING LICENSE.

A. The Commission Would Not Violate the Procedure It Established for the TMI-1 Proceedings By Lifting the Suspension Now.

Despite the contentions of UCS, the Commission, as dis-cussed above, has always reserved to itself the decision as to whether and when to lift the immediately effective suspension of the TMI-l operating license, with such decision to be made in a proceeding before the Commission itself separate and. dis-tinct from theLLicensing and Appeal Paard proceedings. This has been recognized and affirmed by the D.C. Circuit in Philadelphia Newscapers, supra. It has also always been recog-nized by the parties, or should have been. UCS offers no cita-tions to any fact or occurrence indicating any party reliance to the contrary. Lifting the TMI-l immediately effective sus-pension now would be perfectly consistent with this established Commission procedure.

UCS contends that the Commission in its August 9, 1979 Order committed itself to consideration of the lifting of the suspension only after a favorable Licensing Board decision (al-legedly not now in effect due to the Appeal Board remand). UCS bases this contention on the following language in the August 9, 1979 Order:

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1 If the Licensing Board sh'ould issue a deci-sion authorizing resumption of operation upon completion of certain short-term ac-- i

.tions-by the licensee . . ., and subse-N quently if staff certifies that those short-term actions have been completed to its satisfaction, the Commission will issue an order . . . deciding whether the provi-sion of this order requiring the licensee-to remain shut down shall remain immediate-ly effective . . . .

UCS Comments at 3-4.

But this language merely sets out one way the suspension

. may be lifted,.it does not foreclose other procedural possibilities. This language was in fact a minimum guarantee by the Commission to the licensee that consideration of lifting the suspension wculd at least occur upon these events. Con-trary to the UCS contention, the Commission has stated else-where that it may lift tts suspension "whatever the nature of the Licensing Board's decision." 14 NRC.1097, at 1098 (rele-vant language quoted, supra, at 4). Indeed, the Commission had no legal authority to make the commitment UCS contends it did, because authority to maintain the immediately effective suspen-sion dissolves as soon as the special public concerns justi-fying immediate effectiveness dissolve, and the Commission can-not then continue to maintain such a suspension while awaiting a Licensing Board decision. Moreover, in any event, the Li-censing Board did issue a decision favorable to restart and the Appeal Board did not reach any conclusions contrary to the Li-censing Board decision. The Appeal Board merely asked the Li-censing Board to examine further evidence.

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' B. In Deciding to Lift ~the TMI-1 Suspension,'the

Commission'is not Confined'to the Record of the Formal Licensing Board Proceedings.

-The-UCS contention that the Commission must base its deci- ~

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- sion on whether to lift the TMI-1 suspension solely on the-record of the formal, Licensing Board hearings completely fails to recognize that, as discussed above, the decision:on lifting the_ suspension is being made in'a~ separate proceeding before i

the Commission itself. Naturally, the Commission in this sepa-rate proceeding may accept evidence and base its decision on it.

Even if we assume arguendo that Due Process requires that UCS be informed of all such evidence and be allowed to comment on it, such requirement has been fully satisfied. The O.I.

reports and all other evidence provided to the. Commission in public meetings relating to the TMI-1 suspension have been made available to UCS and all other parties,.and all have been al-lowed to-comment on such evidence. The Commission's Order of June 1, 1984 specifically invited the parties to comment on other relevant information. Of course, all evidence in the Li-censing Board proceeding has been provided to UCS and the other parties with opportunity to comment and more. These materials constitute the identified record for the Commission proceeding to decide whether and when to lift the TMI-1 suspension.

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.C. The Separate Proceeding Before'the Commission Itself

Regarding the-Lifting of the Suspension Is No More Than' Informal Adjudication, and the Commission Has-Complied with All Procedural Requirements of such Adjudication.

There is no requirement that the Commission hold any hear-ing at all in-its own proceeding to lift the TMI-l suspension.

Section 189(a) of the Atomic Energy Act (42 U.S.C. 5 2239) re-quires hearings before a suspension is imposed, though such requirement is superceded when the public' health, safety or in-terest requires immediate effectiveness, as noted above. -There is nothing in the language of 5 189(a), however, which requires hearings before an already imposed suspension is lifted.

Under long-standing Commission practice, affirmed by the courts, license suspensions have been routinely lifted without a hearing. In the Matter of 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 E.2d 753 (9th Cir. 1979); In the Matter of Public Service Company of Indiana (Marble Hill Nuclear Generating Sta-tion), CLI-80-10, 11 NRC 438 (1980); Nuclear Regulatory Commis-sion, respondent, (6th Cir. 1983) (slip opinion); In the Matter of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant), CLI-83-27, 18 NRC 1146 (1983); In the Matter of Consumers Power Company (Midland Plant), CLI-73-38, 6 AEC 1082 (1973).2/ While UCS argues that these cases did not involve 2/ A hearing before lifting a suspension should especially not be required where, as here, the suspension was imposed in (Continued next page)

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~ license amendments'as,.well as suspension; removal, as this case does, - the ' Commission: here has also complied with -the' separate procedural' requirements relating to license amendments, as dis-cusse'd, infra,_at 12-15.

1 LEven if $ 189(a) could be read to_ require a hearing before

' lifting-a: suspension,-there is no requirementithat this be a formal hearing. The courts have held that'even where a hearing _

is required, there must be some clear indication.that Congress intended the formal APAlprocedures to apply before they will'be required. City of West Chicago v. United States Nuclear-Regulatory Commission, 701 F.2d 632, 641 ('7th Cir. 1983);

4 United States Lines v. FMC, 584'E.2d 519,536-(D.C. Cir. 1978);

.Nofelco Realty Corp. v. United States, 521 F. Supp. 458

.i (S.D.N.Y. 1981). Nothing in 5.189(a) indicates any intent to require a formal hearing before lifting an immediately effec-tive suspension imposed on a licensee without a prior hearing.

Indeed, in City of West Chicago, the court held that even though 6 189(a) required a haaring for a materials license amendment, there was no requirement that the hearing must be f

i (Continued) t-l the first-place without a hearing due to special concerns regarding the public health, interest or safety. To require-hearings in these circumstances would be ironic and unfair to

-the. licensee, which-suffers suspension itself (in this case over 5_ years) without prior opportunity for a hearing. It l would also seriously hamstring the Commission's practical abil-

!' ity to utilize its summary suspension powers, since the Commis-sion will often not want to impose a summary suspension on a licensee if it cannot lift such suspension until after an ex-tended hearing procedure.

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s-formal. In so holding, the court was interpreting the same hearing requirement language in the first sentence of 5 189(a) that would be the source of any hearing requirement for lifting suspensions, if such a requirement existed.

This analysis is thoroughly consistent with the decision in Philadelphia Newspapers, supra. In regard to the Very same TMI-l proceedings at issue here, the court in Philadelphia Newspapers recognized not only that the Commission-proceeding for_ lifting the suspension was separate from the formal Licens-ing Board proceeding, but also that the Commission proceeding involved only informal adjudication, 727 F.2d at 1197-1199.

Nothing in the Commission's regulations changes this con-clusion either. Lifting a license suspension is not one of the licensing actions which call for formal hearings under the Com-mission's regulations. The Commission has made the formal ad-judicatory procedures under its regulations applicable to the Licensing and Appeal Board proceedings, as UCS notes, but not to the separate, informal proceeding on lifting the license suspension before the Commission itself.

Since this separate, Commission proceeding involves only informal adjudication, the parties, including UCS, have only limited procedural rights in regard to such proceeding. The parties, including UCS, have no right to cross-examination or any of the other formal procedures of the APA in such an infor-mal proceeding, as opposed to the formal Licensing and Appeal Board proceedings. In the informal Commission proceeding, it

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l is appropriate for the Commission merely to accept evidence in a publicly.available record,'as well as comments by all parties I.

on such evidence. -The Commission has taken no actions incon-sistent with the-simple requirements of informal adjudication.

II. THE COMMISSION HAS COMPLIED WITH ALL PROCEDURE REQUIRED TO AMEND THE TMI-l' OPERATING LICENSE NOW.

A. UCS Has No Right to a Hearing in Regard-to the Proposed TMI-1 License Amendments Bebause It Does Not Oppose Such Amendments.

UCS contends correctly that a decision to allow restart would not only involve lifting the suspension-of the.TMI-l op-erating license, but also adopting several amendments to that license. But UCS incorrectly contends that it has a right to a formal, adjudicatory hearing regarding such amendments, and that consequently restart must wait until completion of all formal proceedings before the Licensing and Appeal Boards where such amendments have been adjudicated.

UCS has no right to any sort of hearing regarding these amendments because, while it has advicated additional license conditions, it does not oppose any of the conditions imposed by the Licensing Board which are to be reflected in license amend-ments. Bellotti v. United States Nuclear Regulatory Commission, 725 F.2d 1380 (D.C. Cir. 1983). In Bello t , the Attorney General of Massachusetts was denied a hearing on a license amendment for a plant in his state, because he did not

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_ oppose the amendment but instead wanted to address other issues. Bellotti establishes a fundamental principle of NRC procedure.

UCS argues that' it does oppose restart of TMI-l (and seeks to distinguish Bellotti on this. ground since the plant in that case was never shut down). But none of the amendments them-selves address restart, so UCS opposition to restart does not

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involve opposition to the amendments. The UCS opposition to restart is no more than its opposition to lifting the TMI-1 op-erating license suspension which, as discussed,-supra, at 9 - 12 , also does not give UCS the right to any hearing.

UCS further attempts to argue that merely allowing restart of TMI-1 in itself involves a license amendment, since the re-actor is now shut down. But this argument is illogical on its face. The mere restart of the reactor itself does not change the operating license. ,The Commission may have decided it does not want to allow restart without adopting license amendments.

But this decision in no way turns the act of restart itself into a license amendment. Nor does it require an amendment of the basic operative provision of the license which permits re-actor operation. Under the UCS position, every lifting of a license suspension would be an amendment requiring a prior, formal, adjudicatory hearing.

Sholly v. United States Nuclear Regulatory Commission, 651 F.2d 780 (D.C. Cir. 1980) does not support the UCS position that restart itself is an amendment. The court in Sholly in l

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L fact indicated that if the Commission there had simply lifted the license suspension and allowed.renewea operations under the original terms of the-license, there would.be no amendment and consequently no right to a hearing. Restart itself, therefore, does not involve an amendment according to Sholly. A hearing was required in Sholly because the original license had been superceded by a new license and the NRC had not in fact rein-stated the operable terms of the originalelicense.

B. In Any Event, Formal, Adjudicatory-Hearings Sufficient to Support the TMI-1 License Amendments Were Held in the Licensing Board Proceedings, with Full Participation by UCS and All Other Parties.

Even if UCS was entitled to a hearing on the pregosed TMI-1 license amendments, full, formal, adjudicatory hearings on such amendments were held in the Licensing Board proceed-ings, with full participation by UCS and all other parties.

The Appeal Board remand under ALAB-772 simply mandated examina-tion of further evidence by the Licensing Board on issues unrelated to the amendments. The remand did not question or undermine the justification for any of the already proposed amendments which the Commission may now adopt in allowing restart. Consequently, a full, formal, adjudicatory record sufficient to support adoption of these amendments currently exists.

Moreover, the UCS position that the Appeal Board remand precludes the Commission from now allowing restart is f

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inconsistent with the Commission's prior ruling that the Appeal Board has no authority to stay Commission decision on restart.

- In the Matter of Metropolitan Edison Company, CLI-81-34, 14 NRC 1097 (December 23, 1981).

CONCLUSION A Commission decision allowing restart now would involve two, separate, distinct actions: /

1. Lifting the immediately effective suspension of the-TMI-l operating license; and

2. Amending such license.

The Commission has correctly observed all procedures necessary to take such actions now.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE DJN '

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'Q6orgg F? Trowbridge, [.C.

Petef J. Ferrara 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 Counsel for Licensee Dated: August 10, 1984 I

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UNITED STATES OF AMERICA -

NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

METROPOLITAN EDISON COMPANY ) Docket No. 50-289 (Three Mile Island Nuclear ) (Restart)

Station, Unit No. 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee Reply to UCS Comments on TMI-l Restart," dated August 10, 1984, were served on those persons on the attached Service List by deposit in the United States mail,. postage prepaid, or where indicated by an asterisk (*) by hand delivery, this 10th day of August,-1984.

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Geor/ge F. Trowbridge/, P.C.

Dated: August 10, 1984 r

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h 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

• Thomas M. Roberts, Commissioner U.S. Nuclear Regulatory Commissi:

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 a Administrative Judge James K. Asselstine, Commissioner Christine N. Kohl U.S. Nuclear Regulatory Commission Atomic Safety & Licensing Appeal Washington, D. C. 20555 Board Frederick Bernehal, Commissioner U.S. Nuclear Regulatory Commissi Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Administrative Judge Ivan W. Smith, Chairman Lando W. Zeck, Jr., Commissioner Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissi.

Washington, D.C. 20555 Washington, D.C. 20555 Administrative Judge Administrative Judge Gary J. Cdles, Chairman Sheldon J. Wolfe Atomic Safety & Licensing Appeal Atomic Safety & Licensing Board Board U.S. Nuclear Regulatory Commissi:

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555

, ._s .

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 Lynne Bernabei, Esq.-

Jack R. Goldberg, Esq. (4)

• ^ l Office of the Executive Legal Pr c 1555 Connecticut Avenue ashington, D.C. 20009 U.S ar Regulatory Commission Washington, D.C. 20555

• Ellyn R. Weiss, Esq.

Harmon, Weiss 5 Jordan

Thomas Y. Au, Esq. 2001 S Street, N.W., Suite 4IS 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 Michael W. Maupin, Esq.

Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, VA 23212

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. INVESTIGATION ,,:g7 ,

.c- :p WITNESS:

HERMAN M. DIECKAMP '-

General F'ublic' Utilities-100 Interpace Highway Parsippany, New Jersey Friday, September 12, 1980 1:00 p.m.

A ? P E A R A N C E S:

= MORMAN C. MOSELEY

~" Nuclear Regulatory Commission TERRY HARPSTER Nuclear Regulatory Commission ,;

\

ERNEST BLAKE, ESQ.  !-

Metropolitan Edison Company  !

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s f.5E l-i, l' Adlerson Reporting

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300 7th Street, S.W. '

' Washington, D.C. 20024

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(,20 2) 554-2345 i e

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! , 2 l 9 E R M A N M.- D I. E C K A M o, sworn:

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~~- 2 MR. HARPSTER: The purpose of this 3 investigation is to further investigate . flow of ,

(h. 4 information on March 28th, 1979 with regard to the 5 accident at Three Mile Island. '

L 6 , .MR. MOSELEY: Mr. Dieckamp. You are I I

7 represented here by Mr. Blake who is Metropolitan 8 Edison's counsel. 'Is it your desire that he be 9 present?

10 THE WITNESS: Yes, it is. ,

11 MR. MOSELEY: Mr. Dieckamo on May 9 . you 12 stated in a mailgram to Congressman Udall that there

[j. 13 is no evidence that anyone interpreted the cressure 14 spike and the spray initiation in terms of key 15 reactor core damage at the time of the spike nor 16 that anyone withheld any information. With when did 17 you confer prior to making this statement? .

18 THE WITNESS: In the time period between 19 March the 28th and May the 9th I soent a 20 considerable amount of time at the site interacting 21 with many of the people directly involved on the day

.= 22 of the accident in investigations after the accident

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23 and in continuing efforts up to the date of that 24 mailgram. That statement constituted my ,

25 understanding of the state of knowledge that I had

Diockamp 3 1 derived from thoso many intoractions d'uring that

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==3 2 time period.

3 MR. M O S E L E Y': Were you aware at the time jh 4 the statement was made what had been done to confirm 5' the validity of the statement?

6 THE WITNESS: What I was aware of was

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7 the interviews'that the co'mpany-personnel had made S of a number of the members pf the operating staff.

9 I was also aware of~the narrative that Gary Miller 10 and a number of the plant staff that were present 11 during the early hours of the accident made a few 12 weeks after March 28th. That statement by Gary 13 Mille r ~ su b's equ en tly became part of his testimony 14 before the Kemmeny-Commission. I personally had 15 reviewed Gary Miller's summary and the transcript of i

15 a number of the interviews that the company h9d done 17 with plant personnel in the process of outting 18 together my testimony before the 9 art Subcommittee 19, on, I think the date was April 2 3 ,. 1979. I had aise 20 personally sat in on a number of review sessions 21 with our own investigating team trying to recreate 22 the conditions that followed the accident and tryinc 23 to seek out the exp1anations of what had hapoened.

24 While I can't take credit of what some pecole might ,

25 describe as an exhaustive investigation necessary t:

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Diockemp 4  !

1 provido.cbsoluta vorificction of the statement.that

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r. 2 L'made in the mailgram to C'ongressman Udall, I feel 3 that I had a considerable degree of awareness of the

.= l E: 4 available information. I was also present at the l i-5 time in the control room during the visit of  !

l' 6 Congressman Udall and members of his committee and  !

l-7 staff, I think, .on the day before May.the 9th and ,

I-8 was personally present when, statements were made by {

9 the plant staff describing the observation of the 10 pressure pulse and the immediately ensuing actions.

11 MR. MOSELEY: Were you aware at the time 12 the statement was made that both Chawastyk and 13- Mehler attributed the spike to hydrogen? ,

14 THE WITNESS: I'm not as of today aware 15 that both Mehler and Chawastyk attributed the soike 16 to h yd r'o g e n in any written testimony. I was at that 17 time unaware of any statement by them to that effect.

18 and if such statements exist that are dated orior to 19 May 9th, 79, I would.very much aporeciate seeing 20 them.

21 MR. MOSELEY: I'm not aware of any  ;

22 written statements that they have made. '

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23 THE WITNE9S: Well, sir, your question 24 stated a fact in it as a condition. Oi,d it not?

25 MR. MOSELEY: I don't believe so. l l

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~Diockemp '

5 l' THE WITNESS: Nould you road back the

'L - 3.& 2 question please?' ,

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3 ( T h e ' r e f e r'r e d - t o question read back by ,

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. 4 the court repo rte r) 1-5 MR. MOSELEY: And.have you responded to 6 that question?-

7 , THE WITNESS: I have responded to that 8 question.- ,

9 MR. MOSELEY: Nould you read the response 10 for me please.

11 (Answer to above referred-to question 12 read'back by the court r epo r te r) -

.;.g L3 MR. MCSELEY: Mr. Dieckamp, do you now '

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I 14 consider the statement to be accurate?

i 15 THE WITNESS: I still consider the

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16 statement that I made on May 9th to be accurate. I 17 MR. MOSELEY: The statement which says ,

18 that there is no evidence that anyone interpreted, 19 you believe that to be true' '

20 THE WITNESS: That no one interpreted  !,

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! 21 the spike in terms of core damage. Is that the

._ 22 exact phrasing?

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! 23 Tha t's correct and the 4 MR. MO S E L.E Y : .i 24 spray initiation in terms of reactor c o,r e damage.

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25 THE WITNESS: I have seen nothing to ',

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Diockamp q 1 dato. I~hovo opoeifically coon nothing to dato that

=#. 2 causes me to believe th a 6 th a t statement was i

3 inaccurate as of the d'ay of the accident. ,

'ess 4 MR. MOSELEY: As of the date you made the-g I

5 s ta temen t?

j 6 THE WITNESS: No, I said --

read the 7 statement again that I made, please. Nhat did I say?

8 'MR. MosELEY: W e ,1 1 , you said the i 9 statement was true as of the date of the accident 10 but I believe you made the statement on May 9th. I 11 just don't want the record to be confused.

12 TME WITNESS: Let us direct ourselves to 13 my statement and what is it again? Nould you read 14 it.

f 15 MR. BLAME: The statement that was made 16 on May 9th.

17 MR. MOSELEY: There is no evidence that 18 anyone interpreted the pressure spike and soray 19 initiation in terms of reactor core dtmage at the 20 time of the spike nor that anyone withheld any 21 Information.

t 22 THE WITNESS: Right, that's why I said 23 there was no evidence that I'm aware of on the date 24 of the accident. That's what the s t a t e,m e n t refers 25 to as the date of the accident.

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__Diockamp 7 l i

.1 - MR.-MOSELEY: I quocs I misundorstood

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2 what you had said before.

t 3 THE WITNESS": Well, I didn't mean to be

'j[ 4 contentious. I just want to be sure we know what 5 we're talking about.

6 MR. MOSELEY: Mr. Dieckamo, are you now 7 satisfied that t h 'e information exchanged within the 8 Met Ed/GPU group during March 28th, 1979 was .

9 minimally acceptable?

10 MR. BLAKE: Nould you repeat that 11 question.

12 MR. MOSELEY: Are you satisfied that the p 13 information exchanged within the Met Ed/GoU groue 14 during March 28th, 1979 was mi n imally' acc e ota ble ?

15 THE WITNESS: I'm troubled by the 16 judgmental inference in the question about minimally 17 acceptable. I --

I think it's impossible to look 18 back at the accident and not feel that somehow the 19 totality of communications could have or should h a tt e 20 been better but I hasten to add that we're dealine i

21 with an absolute first event and for the people that 1

a._ 22 were directly involved it's very difficult for ne to 23 know exactly what should have been the emphasis that i

l 24 they should place on devoting their attention to

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f 25 dealing with the immediate problems that they faced l .

• Octcber 31, 1984

. COLKE.('

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UNITED STATES OF-AMERICA NUCLEAR REGULATORY COMMISSION '84 Nijy -2 A10 :48 BEFORE THE COMMISSION .[j .; ,

In the Matter of )

)

METROPOLITAN EDISON COMPANY ~ ) Docket No. 50-289

) (Restart)

(Three Mile Island Nuclear )

' Station, Unit No. 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Addition to Licensee's Reply to UCS and TMIA's Comments in Response to CLI-84-18,"

dated October 31, 1984, were served upon those persons on the attached Service List by deposit in the United States mail, postage prepaid, this 31st day of October, 1984.

24+u M J George' F. Trowbridge, f.C.

7 Dated: October 31, 1984 l

o UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION B_EFORE THE COMMISSION In the Matter )

)

METROPOLITAN EDISON COMPANY ) Docket No. 50-289 SP

) (Restart)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

e SERVICE LIST Nunzio J. Palladino, Chairman-U.S. Nuclear Regulatory Commission Administrative Judge Washington, John H. Buck D.C. 20555 Atomic Safety & Licensing Appea:

Thomas M. Roberts, Cc=missioner Board U.S. Nuclear Regulatory Cc==is s U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 James K. Asselstine, Commissioner Administrative Judge Christine N. Kohl U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety & Licensing Appea Board Frederick Bernchal, Commissioner U.S. Nuclear Regulatory Commiss Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Administrative Judge Lando W. Zeck, Jr., Commissioner Ivan W. Smith, Chairman U.S. Nuclear Regulatory Commission Atomic Safety & Licensing Scari Washington, D.C. U.S.

20555 Nuclear Regulatory C0mmiss)

Washington, D.C. 20555 Administrative Judge Administrative Judge 1

Gary J. Edles, Chairman Atomic Safety & Licensing Appeal Sheldon J. Wolfe Board Atomic Safety & Licensing Scard U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commiss Washington, D.C. 20555 Washington, D.C. 20555 l

__ . _ . . _ - - - - - ~

2-Administrative Judge Mr. Henry D. Hukill l Gustave- A. Linenberger, Jr. Vice President 1 Atomic Safety & Licensing. Board ,

GPU Nuclear Corporation i U.S. Nuclear Regulatory Commission P.O. Box 480 l Washington, D.C. 20555 Middletown, PA 17057 l l

Docketing and Service Section (3) Mr. and Mrs. Norman Aamodt  !

Office of the Secretary R.D. 5 t 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 Lynne Bernabei, Esq.

Jack R. Goldberg, Esq. (4) G "'r me t Accountability Office of the Executive Legal r 1555 Connecticut Avenue U.S .uc ear Regulatory Commission Washington, D.C. 20036 Washington, D. C. 20555 Ellyn R. Weiss, Esq.

Harmon, Weiss & Jordan Thomas Y. Au, Esq. 2001 S Street, N.N., Suite Office of Chief Counsel 431 Washington, D.C. 20009 Depart =ent 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 William T. Russell Deputy Director, Division Michael W. Maupin, Esq.

of Human Factors Safety Hunton & Williams Of fice of NRR 707 East Main Street Mail Stop AR5200 P.O. Box 1535 U.S. Nuclear Regulatory Richmond, VA 23212 Commission Washington, D.C. 20555 p3 i

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