ML20154Q897

Order Denying TMI Alert 860304 Motion to Dismiss 850905 Notice of Hearing Granting C Husted Request for Hearing.No Arguments Presented That Commission Did Not Consider.Served on 860321

ML20154Q897
Person / Time
Site:	Three Mile Island
Issue date:	03/20/1986
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:	THREE MILE ISLAND ALERT
References
CON-#186-495 CH, NUDOCS 8603240166
Download: ML20154Q897 (3)

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', 6 00CKETED U;N9C UNITED STATES OF AMERICL NUCLEAR REGULATORY COMMISMI)N MAR 21 A8 :37 0FFf& 0-COMMISSIONERS: 00CKEi g .

Nunzio J. Palladino, Chaire n Thomas M. Roberts James K. Asselstine Frederick M. Bernthal Lando W. Zech, Jr. M MAR 211986

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In the Matter of )

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GENERAL PUBLIC UTILITIES NUCLEAR Docket No. 50-289 (CH)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

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ORDER On September 5, 1985, the Commission issued a Notice of Hearing granting Charles Husted's request for a hearing. 50 Fed. Reg. 37098 (Septenber 11,1985). A prehearing conference was held in this proceeding on February 19, 1986. On March 4, 1986, Three Mile Island Alert (TMIA), an intervenor in this proceeding, moved the Commission to dismiss the Notice of Hearing.1 TMIA argued that Mr. Husted's request for a hearing was untimely, that Mr. Husted should have participated in I TMIA also requested the Conmission to stay further proceedings pending resolution of its motion to dismiss. Since the Conmission has decided to deny the motion to dismiss, it need not address the stay request.

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the TMI-1 restart proceeding, and that the only issue is legal, not factual.

TMIA misconstrues the Commission's decision to provide Mr. Husted a hearing. As explained in CLI-85-2, the Commission decided not to resolve the difficult questions regarding whether Mr. Husted was legally entitled to an opportunity for hearing because, among other things, in fairness to Mr. Husted it was offering him an opportunity to request a hearing. 21 NRC 282, 316-17 (1985). The focus of this hearing is not a legal one, but rather a factual determination of whether the Appeal Board's condition should remain in place. This determination, unlike that made in the TMI-1 restart proceeding, will be made after Mr. Husted has had a full opportunity to participate in the hearing.2 TMIA has 2

TMIA asserts that the basis of the Commission's decision to offer Mr. Husted a hearing was that he "had had no notice of the Appeal Board's condition and no opportunity to comment." TMIA's assertion is misleading. The point is not that Mr. Husted could have comented after the condition was imposed, but that Mr. Husted was not put on notice at the initiction of the TMI-1 restart proceeding that action might be taken against him as a result of that proceeding. Hence he has net had an adequate opportunity to litigate the issues involving him.

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3 presented no arguments not considered by the Comission in comencing this proceeding. Accordingly, TMIA's motion to dismiss is denied.3 It is so ORDERED.

GAR REcp For the Comission h k 0 f p .f :

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~ SAMUEL J. CHILK

,. p ecretary of t1e Comission Y;; g'. 4 i ,

Dated at Washington, D.C.

f<t this Le day of March, 1986. .

3 TMIA's argument that Mr. Husted's request for hearing was untimely is itself both untimely and incorrect. CLI-85-2 was served on February 26, 1985. Under the terms of that order and the Comission's regulations, Mr. Husted had until March 25 to request a hearing. See 10 CFR 2.710. Hence his March 25 request was timely.