ML20133H937

Order Denying Mi Lewis 850919 Petition for New or Expanded Contention Re Hartman Leak Rate Allegations.Ruling Referred to Appeal Board.Served on 851016

ML20133H937
Person / Time
Site:	Three Mile Island
Issue date:	10/15/1985
From:	Linenberger G, Smith I, Wolfe S Atomic Safety and Licensing Board Panel
To:	LEWIS, M.
References
CON-#485-801 79-429-09-SP, 79-429-9-SP, SP, NUDOCS 8510180185
Download: ML20133H937 (5)

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pl DCC" "ED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMICSAFETYANDLICENSINGBOMD Before Administrative JudgetU.a uf H a t.A Ivan W. Smith, Chairman NEI$MEF#

i Sheldon J. Wolfe Gustave A. Linenberger, Jr.

SERVED OCT161985 In the Matter of Docket No. 50-289-SP

) [ASLBP79-429-09-SP]

METROPOLITAN EDISON COMPANY )

) (Restart)

(Three Mile Island Nuclear )

Station, Unit No. 1) ) October 15, 1985

)

MEMORANDUM AND ORDER (Denying Lewis' Motion to Reopen; Referral of Ruling to Appeal Board)

Memorandum I. Background On September 19, 1985, limited Intervenor, Mr. Marvin I. Lewis, filed a Petition For A New Or Expanded Contention Concerning The Hartman Leak Rate Allegations. In effect, Mr. Lewis moves to reopen the hearings to consider the following new contention:

, Leak rates have been and are being measured erroneously.

I Erroneous leak rates allow the TMI #1 reactor to be operated outside technical specification limits, increasing danger of

a major nuclear accident and reducing the public's safety.

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4 As bases for his proposed contention,I relying basically on a memorandum of September 6, 1985 from Mr. Stewart Ebneter, Director, Division of Reactor Safety, Region I to Mr. Hugh Thompson, Director, Division of Licensing, Mr. Lewis contends that the Staff belatedly aow recognizes that, because the technical specifications permit the application of the evaporative loss term, leak rates have been and are being erroneously measured at TMI-1. He argues that the use of the evaporative loss terms demonstrates a continuing pattern of the NRC's, the nuclear steam system tupplier's and the Licensee's incompetence.

On October 4, 1985, the Licensee filed a response opposing the i

granting of the petition. On October 9th, the Staff's filed its answer opposing the petition.

1 Clearly the proposed contention only contends that leak rates at TMI-1 have been and are being erroneously measured. While urging that the TMI-1 restart hearings should be reopened on the so-called Hartman Allegations, which had alleged that, prior to the accident, TMI-2 leak rate tests had been purposefully manipulated and records of such tests falsified or destroyed, Mr. Lewis concedes that his contention is unrelated to the Hartman allegations (Pet. at 2).

Obviously the Hartman Allegations are neither encompassed within the proposed contention nor do they constitute bases for the contention. In any event, the Commission has determined that (1) the Hartman Allegations do not raise a currently significant safety issue and thus hearings were not necessary except to determine the involvement of any individual who may now work, or in the future desire to work, at a nuclear facility, and to determine what action to take, and that (2) hearings on alleged falsification of leak rate practices at TMI-1 were not warranted. CLI-85-2, 21 NRC 282, 304-05, 313-14, mots, for reconsideration denied, 21 NRC 1104 (1985). Thus, we have no authority to consider such falsification matters.

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II. Discussion l Previously, with respect to various issues in this restart proceeding, we have issued initial decisions, and the time for Appeal Board or Comission review has expired. In CLI-85-2, 21 NRC 282, 289

(1985), as a matter of policy, the Comission decided that it would allow this Board to render a decision on the remaining two issues in the case. In compliance with that decision, on May 3, 1985, we issued a

! partial initial decision on the remanded issue of licensed-operator training at TMI-1. LBP-85-15, 21 NRC 1409. Pursuant to 10 CFR l 2.762, on May 13, 1985, the Union of' Concerned Scientists and Three Mile Island

Alert filed notices of appeal, and on July 1, each of these intervenors filed their briefs.2 The Licensee and the Staff filed briefs respectively on August 5 and August 12. Again, in compliance with l

CLI-85-2, on August 19, 1985, we issued a partial initial decision on

the remanded issue of the Dieckamp mailgram. LBP-85-30, 22 NRC . On September 1,1985, TMIA filed a notice of appeal, but in a letter to the i

l Appeal Board of October 8, 1985, TMIA withdrew the appeal.

The Licensee and the Staff have objected for various reasons to the i

i granting of Mr. Lewic' motion to reopen. One of their objections raises i

l a threshold question -- that of jurisdiction. We need not reach and decide other objections since we conclude that we lack jurisdiction to 2

On October 8,1985, the Union of Concerned Scientists filed a l .

notice of withdrawal of its appeal.

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i entertain the motion to reopen. As stated above, the time for review of our earlier decisions by either the Appeal Board or by the Commission has expired. With respect to first remaining issue, licensed-operator training, the Appeal Board has scheduled oral argument for October 24, 1985. With respect to the second remaining issue, the Dieckamp mailgram, Intervenor Three Mile Island Alert, in filing a notice of appeal on September 1,1985, took the first appellate step pursuant to 10 CFR i 2.762 which removed this last issue from our jurisdiction.3 Accordingly, we lack jurisdiction to consider Mr. Lewis' motion to reopen.

ORDER For the reasons stated above, the Board denies Mr. Lewis' Petition For A New Or Expanded Contention Concerning The Hartman Leak Rate Allegations. While we perceive no rational or direct link between the proposed new contention and the two remaining issues currently pending before the Appeal Board, we do not accede to the Staff's suggestion4 Under the previous Section 2.762, the first step was the appellant's filing of exceptions within ten days after service of the initial decision. In ALAB-699, 16 NRC 1324 (1982), the Appeal Board ruled that jurisdiction to rule on a motion to reopen filed after this first step had been taken rested with the Appeal Board.

Section 2.762, as amended, effective December 19, 1983 (48 Fed.

Reg. 52282), makes this first step the filing of a notice of appeal within ten days after the service of an initial decision.

4 In support of its suggestion, the Staff cites Metropolitan Edison .

Co. (Three Mile Island Nuclear Station, Unit No.1), ALAB-766,19 NRC 981, 983 (1984), and Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-579,11 NRC 223, 226 (1980).

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that we decide that the Appeal Board likewise does not have jurisdiction to rule on the merits of Mr. Lewis' petition and that we refer the petition to the Commission. To do so would be, at the least, presumptuous.

Pursuant to 10 CFR 6 2.730(f), we refer this ruling to the Appeal Board.

THE ATOMIC SAFETY AND LICENSING BOARD N Y .YJ E A Shelcon J. Te 8 ADMINISTRAT l DGE

& au r, Jr.

GutaveA.LinenberyE A ilNISTRATIVE JUDG

/

Ivan W. Smith, ChaiYman ADMINISTRATIVE LAW JUDGE Dated at Bethesda, Maryland this 15th day of October, 1985.