View source for CLI-85-19, Response Opposing Commonwealth of PA 861027 Petition for Review of ALAB-850,Commission 851219 Order CLI-85-19 & 860515 Advisory Opinion & Notice of Hearing CLI-86-9.W/ Certificate of Svc

{{Adams
| number = ML20211K349
| issue date = 11/10/1986
| title = Response Opposing Commonwealth of PA 861027 Petition for Review of ALAB-850,Commission 851219 Order CLI-85-19 & 860515 Advisory Opinion & Notice of Hearing CLI-86-9.W/ Certificate of Svc
| author name = Wagner M, Young M
| author affiliation = NRC OFFICE OF THE GENERAL COUNSEL (OGC)
| addressee name = 
| addressee affiliation = NRC COMMISSION (OCM)
| docket = 05000289
| license number = 
| contact person = 
| case reference number = CON-#486-1491
| document report number = ALAB-850, CLI-85-19, CLI-86-09, CLI-86-9, EW, NUDOCS 8611170135
| document type = LEGAL TRANSCRIPTS &amp; ORDERS &amp; PLEADINGS, PLEADINGS
| page count = 14
}}

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l'/11 00LKETED USNPC UNITED STATES OF AMERICA                                              '86 NOV 13 All :42 HUCLEAR REGULATORY COMMISSION CFF:: ^
BEFORE TILE COMMISSION                                                     .I I    .
                                                                                                                          ?
In the Matter of                                              )
                                                                        )
EDWARD WALLACE                                                 )           Docket No. 50-289 EW
                                                                         )           (Special Proceeding)
(GPU Nuclear, Three Mile Island                                )
Nuclear Station, Unit 1)                                 )
MRC STAFF FESPONSE IN OPPOSITION TO THE PETT'"?ON FOR REVIEW BY THE COMMONWEALTII OF PENNSYLVANIA l
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Mary E. Wagner Counsel for NRC Staff Mitzi A. Young Counsel for NRC Staff November 10, 1986                                                                                                  !
8611170135 861110 PDR    ADOCK 05000289 C                 PDR J) Sol g

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DOLMETED USNFC UNITED STATES OF AMERICA              '86 ND'! 13 All :42 NUCLEAR REGULATORY COMMISSION CFF't L BEFORE TIIE COMMISSION
                                                                                                ?
In the Matter of                      )
                                                  )
EDWARD WALLACE                        )    Docket No. 50-289 EW
                                                  )    (Special Proceeding)
(GPU Nuclear, Three Mile Island       )
Nuclear Station, Unit 1)         )
NRC STAFF PESPONSE IN OPPOSITION TO THE PETI"'!ON FOR REVIEW BY THE COMMONWEALTIl OF PENNSYLVANIA Mary E. Vragner Counsel for NRC Staff Mitzi A. Young Counsel for NRC Stuff November 10, 1986

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UNITED STATES OF AMERICA                                           l NUCLEAR REGULATORY COMMISSION                                                         l l
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         .                                                 BEFORE THE COMMISSION
           . In the Matter of                                               )
                                                                             )
EDWARD WALLACE                                                 )   Docket No. 50-289 EW
                                                                             )   (Special Proceeding)
(GPU Nuclear, Three Mile Island                               )
Nuclear Station, Unit 1)                                  )
NRC STAFF RESPONSE IN OPPOSITION TO TIIE PETITION FOR REVIEW BY THE COMMONFEALTH OF PENNSYLVANIA I. INTRODUCTION On October 27, 1980, the Commonwealth of Pennsylvania (Common-wealth) filed a petition for review II of ALAB-850, 24 NRC (October 9,        1986).                  In addition, the Petition asks that the Commission review its order of December 19, 1985, CLI-85-19, 22 NRC 886 (1985),
and its Advisory Opinion and Notice of Hearing issued on May 15, 1986, CLI-86-9, 23 NRC 465 (1986).
Because the Commonwealth fails to raise an important issue of law or policy or to demonstrate that the Appecl Board resolved factual issues contrary to the resolution of such issues by the Administrative Law Judge (see 10 C.F.R. I 2.786(b)(4)), the NRC Staff opposes the Common-
              -1/   Commonwealth of Pennsylvania Petition for Review, October 27, 1986 (Petition) . The Commonwealth erroneously requests Commission re-view pursuant to Section 2.286(h), a section which does not appear in the regulations. Petition at 1. However,10 C.F.R. I 2.786 per-tains to petitions for review.

3 wealth's petition for Commission review of the Appeal Board's decision.
In addition, insofar as the Commonwealth seeks reconsideration of the
 ,    ,            Commission's       notice of hearing concerning the Wallace proceeding, CLI-86-9, 23 NRC 465 (1986), and its order in CLI-85-19, which estab-lished procedures for determining whether to lift a condition imposed in the TMI-1 restart proceeding on GPU Nuclear Corporation (the present licensee), the Commonwealth's request is inexcusably tardy SI and the petition for review of these Commission decisions should also be denied.
II. BACKGROUND On October 25, 1979, the Staff issued a Notice of Violation (NOV) to Metropolitan Edison Co. (Licensee), then operator of Three Mile Island
.                  Units 1 and 2, for actions arising out of the TMI-2 accident.                    The Staff subsequently issued a speciel report on its evaluation of the integrity of Licensee's management as it might affect restart of TMI-1.                    NUREG-0680, Supp. No. 5 (July 1984).         Included therein was the Staff's concern that Licensee may have knowingly provided false information in the response to the NOV.         However, since the two officials primarily responsible for the response, Robert Arnold and Edward Wallace, were no longer associated with TMI-1 activities, the Commission decided not to grant motions to re-open the restart proceeding on that issue.            Instead the Commission re-quired Licensee "to notify the Commission before returning either of these
                   -2/   See footnote 6, infra.       In addition,10 C.F.R. I 2.786, which pro-vHfes for Commission review of the Appeal Board decisions, is not a vehicle for seeking reconsideration of Commission decisions. Thus, the Commonwenith's petition for Commission review of these Commis-sion decisions is improper.

individuals to responsible positions at TMI-1."            Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit 1), CLI-85-2, 21 NRC 282, 323 (1985).
Later,    Arnold and Wallace requested            "'a separate hearing to determine whether the adverse implications about [their] integrity are factually substantiated.'" CLI-85-19, 23 NRC at 887. The Commission, in CLI-85-19, issued a response to the requests of GPU officials Arnold and Wallace for a hearing in order to clear them of any wrongdoing in connec-tion with Licensee's December 5,       1979 response to the October 25, 1979 NOV.      The Commission invited interested persons to comment on whether there was a reasonable basis to believe that Arnold and Wallace knowing-ly, willfully or with reckless disregard made a material false statement in GPU's December 5,       1979 NOV response.       Comments were submitted by some of the parties to TMI-1 restart proceeding including the Common-wealth, Arnold, Wallace, and the NRC Staff.             Upon considering the com-ments, the Commission, in CLI-86-9, found there was no basis to conclude that Mr. Arnold had made a knowing, willful or reckless material false statement in the NOV response, but declined to lift the condition with regcrd to Arnold because Arnold stated no objection to the continuation of the notification requirement imposed in the restart proceeding (CLI-85-2) regarding his possible return to TMI-1.       CLI-86-9, 23 NRC at 466.
    .       With regard to Wallace, the Commission noted that the evidence was "much more difficult to evaluate," 23 NRC at 466-67, but that the Com-mission could not " clear his name without additional evidence," 23 NRC at 471. In short, the Commission concluded that any further action regard-irg the condition as to Wallace "must await the conclusion of a hearing."

g                                                    23 NRC at 472. 'The Commission granted Wallace's request for hearing, set forth the issues to be addressed in the proceeding 3_/ and further stated (23 NRC at 472):
Any petitions to intervene by persons who responded by filing comments in response to CLI-85-19 shall be filed in accordance with 10 CFR I 2.714, and to be timely, shall be filed with 45 days of this Notice . . . .         NRC Staff shall participate as a party.      Any party who advocates that Wallace made a knowing, willful, or reckless material false statement in the NOV response shall have the burden of going forward and persuasion. If no person intervenes against Wallace and NRC Staff does not advo-cate a position against Wallace, then the proceeding shall be terminated and the TMI-1 notification requirement as to Wallace shall be removed.
On June 30, 1986, the Commonwealth filed a timely petition for leave to participate as an interested state pursuant to 10 C.F.R.           I 2.715(c) i        and stated that it did not advocate a position against Mr. Wallace.         Com-monwealth of Pennsylvania's Petition For Leave To Participate As An 3/   Briefly, the questions posed by the Commission were:
(1) Does any part of the       . . . Licensee's December 5, 1979   NOV response       constitute   a material false statement?
                                      .         e          e l
(2) If there was a material false statement, what knowl-cdge and involvement, if any, did Wallace have in making that statement?
(3) If Wallace knew of or was involved in making a mate-rial false statement, does that knowledge or involve-ment indicate willful, knowing, or reckless conduct?
(4) If Wallace engaged in willful, knowing, or reckless conduct, should there by any constraints on his em-ployment in NRC-regulated activities?       (His perfor-j                          mance to date may be considered in this connection.)
23 NRC at 471-72.
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e Interested State, at 2. On July 17,,1986, the NRC Staff reported that it did not advocate a position against Wallace. Letter from Mary E. Wagner to Judge Ivan M. Smith, July 17, 1986.      No party filed a petition to in-tervene pursuant to Section 2.714. Since there was no intervenor which opposed Wallace and the NRC Staff did not advocate a position against Wallace, the presiding officer terminated the proceeding and removed the TMI-1 notification requirement as to Mr. Wallace. ALJ-86-3, 24 NRC (August 19, 1986).
The Commonwealth's appeal from the Administrative Law Judge's or-der was denied by the Appeal Board on October 9,1986.         ALAB-850, 24 NRC       . The Appeal Board affirmed the order, finding that the termi-nation of the proceeding and the removal of the TMI-I notification re-quirement as to Wallace was " compelled by the express terms of the Commission's notice of hearing" and that the Commission directive was equally binding on the Appeal Board.       ALAB-850, slip opinion at 2-3.
The Commonwealth now seeks Commission review of Appeal Board's order as well as the Commission's rulings regarding P?allace in CLI-85-19 and CLI-86-9.
III. DISCUSSION A. Commission Review of ALAD-850 Is Not Y!arranted Although the Commission has discretion to review any decision of its subordinate boards, a petition for Commission review of matters of law and policy "will not ordinarily be granted" unless important environmen-tal, safety, procedural, common defense, antitruct, or public policy is-sues arc involved. 10 C.F.R. I 2.786(b)(4)(1). Similarly, petitions for

b review of matters of fact will not be granted unless the Appeal Board has resolved a factual issue necessary for a decision in a clearly erroneous manner contrary to the resolution of that same issue by the Licensing Board    (in this case,    the Administrative Law Judge).           10 C.F.R.
I 2.786(b)(4)(fi). Because the arguments made by the Commonwealth do not meet these standards ,         Commission review of ALAB-850 is not warranted.
The specific actions of which the Commonwealth complains -- alleged
           " alterations of evidentiary requirements and improper shifting of the bur-dens of proof" (Petition at 1 17) -- are not actions taken by the Appeal Board in ALAB-850, but by the Commission itself.          The Commonwealth's dissatisfaction with the procedures established by the Commission cannot serve as a basis for review of ALAB-850.
There is no error in ALAB-850 as to a significant issue of law or policy which warrants review.       The Appe$tl Board in that decision looked to the straightforward criteria set forth by the Commission in CLI-86-9 and followed the clear directives of the Commission:      "If no person inter-venes against Wallace and the NRC Staff does not advocate a position against Wallace, then the proceeding shall be terminated and the TMI-1 notification requirement as to Wallace shall be removed." 23 MRC at 472.
In an attempt to meet the standards for Commission review as set forth in
      . Section 2.786, the Commonwealth asserts only that the " issues in this proceeding affect the integrity of TMI-l's management," and thus could significantly affect the environment and public health and safety.        Peti-tion at 1 17. This generN assertion of error on a significant matter of law and policy warrantinF Commission review must fail.              Under the

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Commission's directive in the notice of hearing (CLI-86-9), before reach-ing the " issues" alluded to, presumably the management integrity issues identified in CLI-86-9, I the Administrative Law Judge was required to find that the criteria for conducting a hearing on such issues were satis-fled. It was thus entirely proper for ALAB-850 to deal solely with the question of whether the Administrative Law Judge correctly applied the Commission's criteria for~ a hearing. The Appeal Board's affirmance of the Administrative Law Judge's decision was fully consonant with CLI-86-9.
To the extent the Commonwealth's petition may be interpreted as a com-plaint that ALAB-850 did not address or correctly decide the question of whether the Commission's criteria and other procedural ground rules were appropriate cannot be said to involve an important matter that could sig-nificantly affect the environment or the public health and safety.
hloreover,    the   Commonwealth    does    not  claim any    " error" in ALAB-850. Rather, the Commonwealth asserts only that the procedures established for this proceeding by the Commission led to "an anomalous result" below. Petition at 116. It is clear from a review ef the Common-wealth's petition, and its failure to claim error in ALAB-850, that the Commonwealth's dissatisfaction lies not with ALAB-850 but with prior Com-mission actions in CLI-85-19 and CLI-86-0.         Such dissatisfaction cannot serve as a basis for review of ALAB-850.
In summary, the Commonwealth's arguments do not meet the stan-dards for Commission review as set forth in Section 2.78G, and Commis-sion review is not warranted.
f/    See footnote 3, supra.                                                           )
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b B. The Commonwealth's Petition for Review of CLI-85-19 and CLI-86-9 Is Out of Time and Should be Rejected The         Commonwealth    has   also       requested            Commission  review  of
  . CLI-85-19 and CLI-86-9, citing 10 C.F.R. I 2.786(b).                           That section, by its terms, pertains to Commission review of a decision or action by an Atomic Safety and Licensing Appeal Board, and not to Commission review of its own decisions.          A petition filed pursuant to Section 2.786 is not an appropriate vehicle for expressing dissatisfaction with a Commission deci-sion.        The Commonwealth, in fact, does not seek Commission review of its own decisions, but seeks Commission reconsideration of those decisions.
Any request for modification of CLI-85-19 or CLI-86-9 should have been made at a much earlier date.                Moreover, the Commonwealth's assertion that any appeal of this proceeding prior to ALAB-850 would have been interlocutory (Petition at i 13) is not persuasive. b In conclusion, the Commonwealth's petition for review of CLI-85-19 and CLI-86-9 is an inappropriate mechanism, and a tardy attempt, to seek reconsideration of a Commission deciFlon.                Thus, the Commonwealth's re-quest should be denied.
5,/     In circumstances analogous to the instant case and concerning the same facility, the Commission, in response to a reoucst to expand the scope of a hearing offered to a TMI-1 employee on a condition imposed by the Appeal Board on General Public Utilities Nuclear, broadened the scope of the hearing to be held.                       Notice of Hearing, General Public Utilities Nuclear (Three Mile Island Nuclear Station, Unit No.1), 50 Fed. Reg. 37098 (September 11, 1985).                          Thus, in similar circumstances, the Commission, having established the scope of an offered hearing, see CLI-85-2, 21 NRC at 317, tacitly accepted the appropriateness of requests to alter the scope of the hearing notice by direct and timely application to the Commission. In light of the inability of the Administrative Law Judge or Appeal Beard to (FOOTNOTE CONTINUED ON NEXT PAGE)

                                           ~9-IV. CONCLUSION
   .         For the reesons set forth above, the Commonwealth's Petition should be denied in all respects.
Respectfully submitted,               j M y    . Wagne ounsel for NRC Staff
                                                             *9 f.
M          oung Counsel for NRC Staff Dated at Bethesda, Maryland this 10th day of November,1986 4
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) modify the secpe of the Commission's notice of hearing, the appro-priate time for the Commonwealth to challenge the Commission's notice of hearing was upon issuance of the Mey 15, 1986 notice.

03LXETED
                                                                                                                                                     'NuHc UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION
                                                                                                                                          '86 NOV 13 A11 :42 BEFORE TIIE COMMISSION
[0 fdrVAN:   ,' m   m In the Matter of                                                              )                                                                                ,
                                                                                )
EDWARD WALLACE                                                                )              Docket No. 50-289 EW
                                                                                )              (Special Proceeding)
(GPU Nuclear, Three Mile Island                                               )
Nuclear Station, Unit 1)                                                )
NOTICT. OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned matter.                                                           In accordance with 10 C.F.R. F ?.713(b), the following information is provided:
Name                                                              -
Mitzi A. Young Address                                                           -
U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, DC 20555 Telephone Number                                                  -
(301) 492-7837 Admission                                                         -
U.S. Court of Appeals, D.C. Circuit U.S. District Court, District of Columbia District of Columbia Court of Appeals Name of Party                                                     -
URC Staff Respectfully submitted, Mitil A Young
                                                                                                       'f .
Coudst!1 for NRC Staff Dated at Bethesda, Maryland this 10th day of November,1986

UNITED STATES OF AMERICA NUCLEAR REGULATORY COM?tISSION
                                                                                 '86 NOV 13 All :42 BEFORE THE COMMISSION                g      ,
00CKEDE A                         MI B P /@_
In the Matter of                                  )
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                                                         )
;      EDWARD WALLACE                                    )          Docket No. 50-289 EU
!                                                        )          (Special Proceeding)
(GPU Nuclear, Three Mile Island                   )
Nuclear Station, Unit 1)            )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE IN OPPOSITION TO THE PETITION FOR REVIEW BY THE COMMONWEALTII OF PENNSYL-VANIA" and " NOTICE OF APPEAR ANCE" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 10th day of November,1986:
       *Ivan W. Smith                                             Henry D. Hukill Administrative Law Judge                                Vice President and Director, TMI-1 U.S. Nuclear Regulatory Commission                     GPU Nuclear Corporation Washington, DC 20555                                    P.O. Box 480 Middletown, PA 17057 Nicholas S. Reynolds, Esq.
Bishop, Liberman, Cook, Purcell &                          Lynne Bernabel, Esq.
Reynolds                                          General Counsel 120017th Street, NW, Suite 700                             Government Accountability Project Washington, DC 20036                                       1555 Connecticut Avenue, NW Washington, DC 20036 Michael W. Maupin, Esq.
Ilunton & Williams                                         Ellyn R. Weiss, Esq.
P.O. Box 1535                                              Harmon & Weiss Richmond, VA 23212                                         2001 S Street, NW Washington, DC 20009 Ernest L. Blake, Jr. Esq.
Shaw, Pittman, Potts & Trowbridge                          Michael F. McBride, Esq.
1800 M Street, NW                                         LeBoeuf, Lamb, Leiby a MacRae Washington, DC 20036                                       1333 New Hampshire Avenue, NW Washington, DC 20036 Susquehanna Valley Alliance P.O. Box 1012                                              A!ein Leibman, Esq.
Lancaster, PA 17604                                       Greenbaum, Roue, Smith, Pavin, Davis & Bergstein P.O. Fox 5600 Woodbridge, NJ 07095

l' I                                               _p-J. R. Thorpe
* Docketing & Service Section Director of Licensing                                 Office of the Secretary GPU Nuclear Corporation                               U.S. Nuclear Regulatory Commission 100 Interpace Parkway                                 Washington, DC 20555 Parsippany, NJ 07054 Thomas Y. Au, Esq.                                    P.tarjorie M. Aamodt Assistant Counsel                                     200 North Church Street Department of Environmental Resources                 Parkesburg, PA 193E5 P.O. Box 2357 Ilarrisburg, PA 17120                                 Marjorie M. Aamodt Comraittee on Health Aspects and Marvin I. Lewis                                         Nuclear Power 6504 Bradford Terrace                                 Box 652 Philadelphia, PA 19149                                Lake Placid, NY 12946 Joanne Doroshow, Esq.                                 Louise Bradford The Christic Institute                                1011 Green Street 1224 North Capitol Street, NW                         Harrisburg, PA 17102 Washington, DC 20002 Three Mile Island Alert fiarthe Lester                                        315 Peffer Street Associate Director                                    Harrisburg, PA 17102 Commonwealth of Pennsylvania Washington Office 400 North Capitol Street, Suite 285 Washington, DC 20001
                                                         ' MiYr A. / Young                   /
Coun I for NRC Staff l
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