ML20215D824

Decision ALAB-850 Affirming ASLB 860819 Order Terminating Proceeding Involving E Wallace in Response to Commonwealth of Pa.Served on 861010

ML20215D824
Person / Time
Site:	Three Mile Island
Issue date:	10/09/1986
From:	Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	PENNSYLVANIA, COMMONWEALTH OF
References
CON-#486-1045 ALAB-850, RA-EW, NUDOCS 8610140315
Download: ML20215D824 (3)

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UNITED STATES OF AMERICA NUCLEAR ~ REGULATORY COMMISSION fC OfhhIf ATOMIC SAFETY AND LICENSING APPEAL BOARD *86 @ jQ gjj ;j g Administrative Judges:

OFFICE cF EEatifj y.

Alan S. Rosenthal, Chairman Octobhrh[hkkd"WCl Dr. W. Reed Johnson (ALAB-850)

Thomas S. Moore

)

SERVED OCT 101986 In the Matter of )

)

EDWARD WALLACE ) Docket No. 50-289 EW

)

(GPU Nuclear, Three Mile )

Island, Unit. No. 1) )

)

Thomas Y. Au and Barry M. Hartman, Harrisburg, Pennsylvania, for the Commonwealth of Pennsylvania.

Michael B. Himmel and Alain Leibman, Woodbridge, New Jersey, for Edward Wallace.

Mary E. Wagner for the Nuclear Regulatory Commission

. staff.

DECISION Before us is the appeal of the Commonwealth of Pennsylvania from the August 19, 1986 order of the Administrative Law Judge in this special proceeding involving Edward Wallace. That order terminated the proceeding. In addition, it removed an existing requirement that the General Public Utilities Nuclear Corporation, the current holder of the operating license for Unit 1 of the Three Mile Island Nuclear Station, notify the Commission See ALJ-86-3, 24 NRC .

8610140315 861009 PDR ADOCK 05000289 G PDR 1

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before returning Mr. Wallace to a responsible position at that facility.

In essence, Pennsylvania's claim is that the proceeding should have gone forward notwithstanding the facts that (1) no one -- including the Commonwealth -- sought to intervene in opposition to Mr. Wallace; and (2) the NRC staff was content to have the notification requirement lifted. We agree with Mr. Wallace and the staff that the claim is devoid of merit. As concluded by the Administrative Law Judge in his August 19 order, it is manifest that, in the circumstances of the case, the challenged result was -

compelled by the express terms of the Commission's notice of 2 See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-2, 21 NRC 282, 323 (1985).

3'For its part, the Commonwealth filed a petition under 10 CFR 2.715(c) for leave to participate in the proceeding as an " interested State." Commonwealth of Pennsylvania's Petition for Leave to Participate as an Interested State (June 30, 1986). As permitted by Section 2.715(c), the petition informed the Licensing Board (at 2) that "[t]he Commonwealth is not now advocating a position against Mr.

Wallace."

It scarcely should require emphasis that the Commonwealth's decision to follow this course was entirely voluntary. Had it been prepared to take a position adverse to Mr. Wallace (i.e., to oppose the removal of the notification requirement applicable to him), the Commonwealth could have sought the status of a full party to the proceeding through the vehicle of a petition for leave to intervene filed under' 10 CFR 2.714 (a) . See, e.g.,

Project Management Corp. (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383 (1976).

3 hearing establishing the proceeding. In relevant part, the notice stated that "[i]f no person intervenes against Wallace and NRC Staff does not advocate a position against Wallace, then the proceeding shall be terminated and the TMI-l notification requirement as to Wallace shall be removed."

That explicit directive is just as binding upon us as it was upon the Administrative Law Judge. Any dissatisfaction that the Commonwealth may have with it must now be addressed to the Commission itself.

Affirmed.

It is so ORDERED.

FOR THE APPEAL BOARD

b. -- -- h C. J Qn Shc6 maker Secretary to the Appeal Board CLI-86-9, 23 NRC 465, 472 (1986).

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