ML20138H262

Order Dismissing Petition Re Hartman Allegations on Erroneous Leak Rate Measurement.Served on 851025

ML20138H262
Person / Time
Site:	Three Mile Island
Issue date:	10/25/1985
From:	Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	Lewis M LEWIS, M.
References
CON-#485-928 ALAB-821, SP, NUDOCS 8510280517
Download: ML20138H262 (6)

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>- 00 L UNITED STATES OF AMERICA q ToU/ : a NUCLEAR stEGULATORY COMMISSIONg} ej; -44.Y

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p Administrative Judges:

Gary J. Edles, Chairman October 25, 1985 Dr. W. Reed Johnson (ALAB-821)

Christine N. Kohl SERVED OCT 251985

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In the Matter of )

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METROPOLITAN EDISON COMPANY, ) Docket No. 50-289 SP ET AL. ) (Restart)

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(Three Mile Island Nuclear )

Station, Unit No. 1) )

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1 MEMORANDUM AND ORDER We have before us a petition to reopen this proceeding, filed with the Licensing Board by Marvin I. Lewis and l referred to us by that Board. The petition seeks a 4

reopening with regard to the so-called "Hartman Allegationc l . . . expanded to take in all aspects of leak rate," as set forth in the following new contention:

I Leak rates have been and are being measured erroneously. Erroneous leak rates allow the TMI

1. 1 reactor to be operated outside technical

! specification limits, increasing danger of a major l nuclear accident and reducing the public's l safety.1 In support of his petition, Mr. Lewis relies on a September 6, 1985, memorandum from the Director, Division of 1

Petition of Marvin I. Lewis, Intervenor, for A New or Expanded Contention Concerning the Ilartman Leak Rate Allegations (September 19, 1985) at 4.

8510280517 851025 PDR ADOCK 05000289

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i j Reactor Safety, NRC Region I, to the Director, Division of Licensing, Office of Nuclear Reactor Regulation (NRR),

regarding leak rate test results obtained during a recent i

! heatup of TMI Unit 1. This memorandum states that, although

" evaporative losses" actually appear to be zero, this term i

is not in the TMI Unit 1 technical specifications. The l

memorandum accordingly goes on-to recommend modification of 4

the technical specifications. Mr. Lewis alleges that this j is additional evidence of what he describes as a " continuing i

i pattern of incompetence" by the licensee, its nuclear steam

] system supplier, and the Commission as well.2 The licensee i'

1 and the NRC staff oppose the petition 3 i The Licensi'ng Board denied the petition, finding it i

lacks jurisdiction to entertain it. The Board nonetheless i

referred it to us -- not for review of its ruling, but I

rather for determination of whether we independently have i

I 2 Id. at 3.

3 See Licensee's Response to the Petition of Marvin I.

Lewis for a New Leak Rate Contention (October 4, 1985); NRC Staff's Answer to Petition of Marvin I. Lewis, Intervenor, for a New or Expanded Contention Concerning the Hartman Leak Rate Allegations (October 9, 1985).

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3 authority to consider it.4 We conclude that we do not. We also affirm the Board's ruling as to its own jurisdiction.

In our Waterford opinion we addressed the matter of our i

j authority to consider issues raised in a petition to reopen.

! We observed:

If we have previously considered an issue and (by either the action or inaction of the Commission) our determination amounts to final agency action on that issue, we have no jurisdiction over a

, subsequent attempt to raise that matter once

again. Such requests are, in general, more i

properly directed to NBR. This is true despite

! the fact that other issues in the same proceeding i

may still be pending before us. On the other hand, when an issue sought to be considered anew, or to be reconsidered, has a reasonable nexus to the discrete matter still i have jurisdiction over it.gending before us, we l In response to a request for clarification of that opinion,

we held that the " reasonable nexus" test could be satisfied i

l where the new issues overlap those pending before us, because "a total identity or commonnlity of issues" is not

' 6 necessary.

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4 Licensing Board Itemorandum and Order of October 15,

! 1985 (unpublished).

i Louisiana Power & Light Co. (Waterford Steam Electric

, Station, Unit 3), ALAB-792, 20 NRC 1585, 1588 (1984). See l also Pacific Gas and Electric Co. (Diablo Canyon Nuclear

! Power Plant, Units 1 and 2) , ALAB-782, 20 NRC 838, 841 (1984).

! 6 Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-797, ;21 NRC 6, 8-9 (1985).

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i, i In the instant case, we earlier completed appellate i review of all but four matters. Specifically, we ordered I the Licensing Board to conduct further hearings with regard i

! to (i) the adequacy of the licensee's training program, (ii) f the so-called Dieckamp mailgram, (iii) the Hartman

! allegations of falsification of leak rate data at Unit 2, T

l and (iv) other allegations regarding falsification of leak rate data at Unit 1. The Commission,_however, reversed our 9

5 decision regarding the Unit 1 leak rate issue and decided that no hearing on that subject was warranted.8 The i Commission also determined that the Hartman allegations

$ concerning Unit 2 did "not raise a currently significant safety issue" so as to require further hearings in this proceeding.9 Nevertheless, it decided to institute a

! separate proceeding with regard to certain aspects of the Hartman allegations.10 That brought to an end the adjudicatory consideration in this proceeding of allegations I

1 concerning falsification of leak rates (including the l

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! ALAB-738, 18 NRC 177 (1983) (Hartman allegations);

j ALAB-772, 19 NRC 1193 (1984) (training, Dieckamp mailgram, 4

and Unit 1 leak rate data falsification).

CLI-85-2, 21 NRC 282, 306-14, reconsideration denied, CLI-85-7, 21 NRC 1104 (1985).

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-Id. at 304-05.

10 Id. at 305-06.

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Harcman allegations) and left pending only the issues of licensed operator training and the Dieckamp mailgram.

It is not entirely clear whether Mr. Lewis is concerned with an assertedly ongoing pattern of leak rate problems --

of which the new information is simply another example -- or i

a wholly new matter (or both). If it is the former, the Commission has already taken final action on such matters i

and determined that they shall not be evaluated in this proceeding. If his petition raises a new concern, no i reasonable nexus to the two discrete matters still pending i

before us is asserted or apparent. In either circumstance, i

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we lack authority to consider the issue raised in the i'

petition.12 As for the Licensing Board's ruling concerning its own j lack of jurisdiction in this matter, we affirm. Its l

11 The Commission subsequently lifted the order directing that Unit 1 remain shut down and permitted resumption of operations. CLI-85-9, 21 NRC 1118, aff'd, Three Mile Island Alert, Inc. v. NRC, 771 P.2d 720 (3d Cir.

. 1985).

l l In response to our romand, the Licensing Board has

! issued LBP-85-15, 21 NRC 1409 (1985), and LBP-85-30, 22 NRC

! (August 19, 1985), resolving both the training and Dieckamp mailgram issues in the licensee's favor. Appeals from those decisions were timely filed but have since been withdrawn. Our sua sponte review, however, has not yet been completed. See Appeal Board Order of October 21, 1985 (unpublished).

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' 12 Waterford, ALAB-792, 20 NRC at 1588, and ALAB-797,

{ 21 NRC at 8-9.

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, 6 jurisdiction over all matters in this proceeding ceased with the filing of an appeal from its last decision on the Dieckamp mailgram.

The petition of Marvin I. Lewis is dismissed.14 i

It is so ORDERED.

FOR THE APPEAL BOARD i

( - h Y - _- -

C. J@n SN6emaker Secrdtary to the i

Appeal Board

13 See ALAB-699, 16 NRC 1324, 1326-27 (1982).

14 First, the Several other matters are noteworthy. -

instant case is a "special proceeding" in which the Commission has directed adjudicatory consideration of only selected issues. See CLI-80-5, 11 NRC 408 (1980). It is not clear that the matter Mr. Lewis seeks to raise falls within those designated by the Commission for adjudicatory examination. Second, the Licensing Board previously ruled that Mr. Lewis had not demonstrated the requisite standing to intervene in this proceeding, although it nonetheless

, allowed him to participate with respect to a contention dealing with the adequacy of the TMI filter system for

. radioactive effluents, an issue not advanced by any other intervenor. See LBP-81-32, 14 NRC 381, 392 n.4 (1981).

i Given our disposition of the petition as noted above, however, we need not determine whether the issue he now seeks to raise is actually embraced within the matters j delegated to the adjudicatory boards by the Commission, or whether he has the requisite standing to raise it.

Finally, we note that the September 6 memorandum does

not appear to raise any genuine safety question. Indeed, it I indicates that the current leak rate at Unit 1 is

" essentially zero" and suggests no safety concerns on the part of the staff.

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