ML20128G560
| ML20128G560 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/24/1985 |
| From: | Baxter T GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Asselstine J, Palladino N, Roberts T NRC COMMISSION (OCM) |
| References | |
| CON-#285-139 SP, NUDOCS 8505300215 | |
| Download: ML20128G560 (8) | |
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SHAW, PITTMAN, PoTTs & TROWBRIDGE
, P.RTNtasHlp INCouo,NG PROFESS oN.t coRpon.T.chs 1800 M STREET, N. W.
WASHINGTON D. C. 20036 (202)822-1000 P.c MENNETH J MAUvM.N SYLVs. M. torRECM m.wo.oeutg!I.NC.
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.R TER 5 D,mECT D8 6 NUMBER May 24, 1985 (202) 822-1090 Chairman Nunzio J.
Palladino Commissioner Thomas M. Roberts Commissioner James K. Asselstine Commissioner Frederick Bernthal Commissioner Lando W.
Zech, Jr.
U.S. Nuclear Regulatory Commission Washington, D. C.
20555 In the Matter of Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit N.)1)
Docket No. 50-289 (Restart) [d
/
Gentlemen:
By letter to the Commission of May 16, 1985, UCS objects to the Staff's certification of compliance with a commission-imposed requirement as an improperly delegated resolution of a contested issue, and requests that the Commission direct the Staff to produce essentially all written information on which the certification is based.
For the reasons discussed below, Licensee opposes the UCS objection / request, which is based on factual errors and misinterpretations of the law.
8505300215 850524 ADOCK0500g9 DR b2
SHAW, PITTMAN PoTTs & TROWBRIDGE A PARTNERgn= top GNCLUOsNO PRorggs,onAL Componarious NRC Commissioners May 24,~1985 Page 2
Background
In its July 26, 1984 decision'on review of the plant de-sign and proceduret issuer in the Restart proceeding, the Com-mission concluded ... that electrical equipment at TMI-1 needed to respond to a TMI-2-type small-break LOCA or loss-of-
. main-feedwater accident must be qualified to the radiation lev-els associated with LOR Guf.delines for large-break LOCAs."
CLI-84-ll, 20 N.R.C. 1, 7 (1984).
The Commission directed the Staff
. to certify the status of environ-mental qualification of equipment as dis-cussed above'for radiation levels associ-ated.with large-break LOCAs in accordance with the DOR Guidelines.
If any equipment within this ambit will not be properly qualified for' radiation prior to restart, licensee is to provide a specific justifi-cation for interim operation.
The staff is to review that justification and present its recommendation to the Commission.
If any such justifications are required and challenged by a party, the Commission will determine at that time what further action is required.
Id.
By letter of April 9, 1985, the Staff transmitted to GPU Nuclear an 18-page " Safety Evaluation Report, Environmental
-Qualification of Electrical' Equipment, Response to Commission
-Decision CLI-84-11."
The Staff reached the following conclu-
~
sions:
1.
The electrical equipment located in containment and the auxiliary build-ing, including replacement equipment to be installed prior to restart and equipraent to be modified prior to restart, whose operation is necessary to mitigate small break LOCAs and loss of main feedwater transients, that is located in a harsh radiation environ-ment and required to be qualified, has been properly identified.
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4.-
SHAw, PITTMAN, PoTTs & TROWBRIDGE A PARTNER $eep *NCLUOtNG PROFESSIONAL CORpORatcNS NRC Commissioners May 24, 1985-Page 3-2.
All such equipment has been demon-strated to be environmentally quali-fled for the radiation levels associ-ated with the DOR Guidelines for a large break LOCA.
SER at 17-18.. Thus, the Staff concluded that the requirement of CLI-84-11~is met and no justifications for interim operation are required.
In its letter to the Commission, UCS asserts that it is entitled tx> review and comment on the data and analysis used by the Staff, and_that this issue may not legally be resolved on the basis of one party's extra-record submissions to the Com-I' mission, even if that party is the NRC Staff.
Before address-ing this untimely and erroneous legal argument, Licensee will respond to the factual underpinning for this UCS letter.
The Facts i
UCS claims that as to the two fundamental questions, the Staff's April 9 letter and SER are uninformative.
The two
- ~
questions, according to UCS, are:
(1) what equipment was de-termined to be within the scope of the Commission's Order and what criteria were used for this determination; and, (2) how it i
was determined that this equipment was qualified for the appro-
'priate radiation levels.
As indicated in the Staff's SER, GPU Nuclear provided its
-list of the electrical' equipment covered by the Commission's Order by letters tx> the Staff dated August 23, August 27 and November 9, 1984, and February 15, 1985.
These documents should be available for UCS to review in the NRC's Public Docu-ment Room.
If UCS has not reviewed them, it is only because it has not taken the time and trouble to do so.
If this is a mat-ter of importance to UCS, it need not wait for the Commission i
to direct the Staff to-package up these letters and mail them to UCS -- an action which under the law is uncalled for in any event.
'During the September, 1984 audit by the Staff, GPU Nuclear provided a copy of-TDR-598, a report which sets forth the meth-odology used to determine what equipment required radiation
' mitigation.
By' memorandum to the files dated September 7, L
1984, Mr. Van Vliet.of the NRC Staff transmitted to the TMI
. Service List and the Public Document Room a copy of TDR-598.
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[eL SHAW, PITTMAN, PoTTs & TROWBRIDGE
- A PARTNER $M*P #NCLUDING PROFESteONAL CompoRAreoNS NRC Commissioners May 24, 1985 Page 4 Consequently, we assume UCS received in the mail a copy.of GPU Nuclear's report on the methodology used to determine which equipment is within the scope-of the Commission's Order.
We
'also assume that the report is available at the Public Document
. Room.
As-to the.second UCS question -- how it was determined that this equipment was qualified for the appropriate radiation levels -- Licensee does not understand what UCS seeks.
The equipment is qualified pursuant to.the DOR Guidelines.
The Staff does not have possession of GPU Nuclear's equipment qual-ification files and cannot~" provide" audits to UCS.
See UCS
-May 16, 1985 letter at 2.
The Staff indicates that the radia-tion levels postulated by Licensee to exist both inside and outside containment following a large-break LOCA were reviewed and accepted by the Staff several years ago, as documented in L
SERs of March 24, 1981, and December 10, 1982.
See SER (April 9, 1985) at 9.
The test reports and analyses demonstrating qualification to these levels are in GPU Nuclear files, which were audited by the Staff.
Some of the documentation is dis-cussed in the April 9 SER.
However, the Staff does not have
=the files and cannot provide them to UCS.
l The Law UCS claims that it is entitled to review and comment on the data and analysis used by the Staff; and UCS suggests that f
the Staff's conclusion should in fact be adjudicated.
UCS L
therefore demands the immediate provision of "the underlying i
data and documentation concerning the SER conclusions, l
including but not-limited to all documentation, analyses, let-i ters, submittals, notes of oral discussions and test results" ll
-- in effect,1 discovery.
First, we note the untimeliness of UCS' assertion that the L
-Commission improperly delegated decisional authority to the i
-Staff.. Genuine concern by UCS could have been expressed by pe-L titioning the Commission for reconsideration of.this aspect of L
.its July 26, 1984 decision promptly after it issued, instead of waiting some ten months -- until the eve of a restart decision o
j
-- to assert a procedural error.
The nature of the Staff's as-signment was clear then, and it was also clear that the Commis-sion did not contemplate further participation by the parties unless-the Staff determined that one or more justifications for interim operation were required.
See CLI-84-ll, 20 N.R.C. at 7 (1984).
A party "must make a reasonable effort to have a pro-l cedural error corrected, not hoard it for use as a ground for i
I
r 4
SHAw, PITTMAN, PoTTs & TROWBRIDGE A PARTNEn$ peep GMCLuO8NG PROFESSIONAL COnpOnAf4NS
'MtC Commissioners May 24, 1985 i
Page 5 reversal in the event it does not like the ultimate decision on the merits."
Public Service Company of Indiana (Marble Hill
-Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 N.R.C.
179, 189 (1978).
UCS has hoarded its objection, which-now is untimely.
Further, UCS' claims ignore the scope of the restart pro-ceeding.
In Metropolitan Edison Company (Three Mile Island Nu-clear. Station, Unit No. 1), CLI-79-8, 10 N.R.C.
141, 148 (1979), the Commission defined the scope of the restart' pro-ceeding, limiting the adjudication to the necessity and suffi-ciency of the long-and short-term actions which the Director of Nuclear Reactor Regulation had recommended.
The Commission did not include as a matter to.be adjudicated the determination whether-actions found necessary had in fact been accomplished; the Commission reserved that determination for the NRC Staff.
Had the Commission not done so, a bifurcated hearing would have been necessary -- one stage to determine whether those actions were necessary, and a second to determine whether those actions i.
=ceeding, no one has suggested that such a-bifurcation is re-had-been accomplished.
In.the six years of the Restart pro-i quired.
The Commission's authority to define and structure its en-forcement proceedings has been upheld in Bellotti v. NRC, 725 F.2d 1380 (D.C. Cir. 1983).
In Bellotti, the Court affirmed a commission decision to limit the scope of an enforcement pro-ceeding solely to the issue whether a license modification should be sustained.
The Court found the commission's decision
[
to be based on aLrational policy directing agency resources to-i
, ward inspection rather than the adjudicatory process.
Id. at 1382.
Issues beyond the scope of the proceeding -- including the adequacy of the implementation of the license modification
-- could be advanced in a subsequent petition for enforcement action.
Id., citing 10 C.F.R. 5 2.206-(1983).
The Commission's approach'is supported by the Administra-tive Procedure Act.
5 U.S.C.
S 554(a)(3) (1984) exempts from formal-hearing procedures decision that " rest solely on inspections, tests, or elections."gj This exemption applies-where, as.in the case at bar, a decision can be made on the basis of observation by members of the NRC Staff and where this decision-making process is expedient.
Cf. UCS v. NRC, 735 F.2d 1437, 1449 and n.23, 1450 (D.C. Cir. 1984).
i 1/
42 U.S.C.'S 2231 (1984) makes the Administrative Procedure Act' applicable to all agency action taken under'the Atomic En-ergy Act.
i i
j
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. SH Aw, PITTM AN, PoTTs & TROWBRIDGE
=*
A PARTNER 5M8P 8NCLUDING PROFrSSCNAL CORponarioNs NRC Commissioners May 24, 1985 Page 6 Furthermore, even if the completion of necessary actions was'a matter-required to be adjudicated -- and it was not --
the Commission could still base a decision to lift the summary suspension of the TMI-l license on the Staff's conclusion.
As the D.C. Circuit has held,-the lifting of a license suspension does not give rise to the right of hearing under the Atomic En-ergy Act.
San Luis Obispo-Mothers For Peace v. NRC, 751 F.2d 1287, 1314 (D.C. Cir. 1984), reh'q granted, (D.C. Cir. May 1, 1985).
As a corollary, the Court held that because the Atomic Energy Act does not. provide for a hearing when a license sus-pension is lifted, the Administrative Procedure Act does not require that material considered by the Commission in lifting the suspension be "on the record."
M. at n.154.
Accordingly, UCS' claims are without merit.
There is no issue within the scope of the restart proceeding to be adjudi-cated and-hence no basis for granting UCS' discovery request.
Conclusion For all of the foregoing reasons, UCS' requests to the Commission should be denied.
Respectfully submitted, t
Thomas A. Baxter Counsel for Licensee cc: TMI-l Service List 4
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.s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
)
)
METROPOLITAN EDISON COMPANY
)
Docket No. 50-289
)
(Restart)
(Three Mile Island Nuclear
)
Station, Unit No. 1)
)
SERVICE LIST Chairman Nunzio J. Palladino Ivan W.
Smith, Esquire U.S. Nuclear Regulatory Commission Chairman, Atomic Safety and Washington, D.C..
20555 Board U.S. Nuclear Regulatory Commission Commissioner Thomas M. Roberts Washington, D.C.
20555
'U.S.
Nuclear Regulatory Commission Washington, D.C.-
20555 Sheldon J. Wolfe, Esquire Atomic Safety and Licensing Board Commissioner James K. Asselstine U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Mr. Gustave A. Linenberger, Jr.
. Commissioner Frederick M. Bernthal Atomic Safety and Licensing Board U.S.. Nuclear Regulatory Commission U.S. Nuclear Regulatory. Commission Washington, D.C.
20555 Washington, D.C.
20555 i
Commissioner Lando W.
Zech, Jr.
Jack R. Goldberg, Esquire U.S.~ Nuclear Regulatory Commission Office of Executive Legal Director Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Docketing and Service Section Mrs. Marjorie M. Aamodt L
Office of the Secretary 200 North Church Street j
U.S. Nuclear Regulatory Commission Parkesburg, PA 19365 l
Washington, D.C.
20555 Mrs. Louise Bradford Gary J. Edles, Esquire TMI ALERT L
Chairman, Atomic Safety and Licensing 1011 Green Street l
Appeal Board Harrisburg, PA 17102
'U.S. Nuclear Regulatory Commission i
l Washington,LD.C.
20555 Ellyn R. Weiss, Esquire i
Harmon, Weiss, & Jordan l'
Dr.'Reginald L. Gotchy 2001 S Street, N.W.,
Suite 430
-Atomic Safety and Licensing Appeal Washington, D.C.
20009' g
L
.U.S.
Nuclear Regulatory Commission
[
Washington, D.C.
20555 i
a e.
Thomas Y. Au, Esquire Office of Chief Counsel Department of Environmental Resources 505 Executive House P.O. Box 2357 Harrisburg, PA 17120 Mr. Henry D. Hukill Vice President GPU Nuclear Corporation P.O. Box 480 Middletown, PA 17057 e
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