ML20128R177

Forwards Commissioner Asselstine Dissenting Views on Commission Order Taking Review of ALAB-772 Re Restart

ML20128R177
Person / Time
Site:	Three Mile Island
Issue date:	09/07/1984
From:	Davis P NRC COMMISSION (OCM)
To:	Bates A NRC OFFICE OF THE SECRETARY (SECY)
Shared Package
ML20128R135	List: ML20128R133 ML20128R177 ML20128R205 ML20129A025 ML20129A057
References
FOIA-85-122 ALAB-772, NUDOCS 8507270138
Download: ML20128R177 (4)

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- p UNITED STATES NUCLEAR REGULATORY COMMISSION -

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WASHINGTON, D.C. 20566 ,

%,.....j Orrect OF THE September 7, 1984 COMMISSIONER MEMORANDUM FOR: Andy Bates, SECY FROM: Pat Davis, OCM 9

SUBJECT:

TMI-1 ORDER - DISSENT Attached are Comissioner Asselstine's dissenting views on the Comission's order taking review of ALAB-772. Please see that they are attached to the order when it goes out.

cc: Reamer Cutchin Schinki Parler -

OGC OPE i

8507270138 850606 PDR FOIA 1 l

BERNABE85-122 PDR b ._ --

Dissenting Views of Comissioner Asselstine I cannot agree with the Comission's order taking review of ALAB-772 and other miscellaneous TMI Restart issues. The Appeal Board decision should be allowed to stand, and the Comission should merely remand the other issues it has decided to review to the Licensing Board.

The Licensing Board can then determine whether new information warrants holding a hearing.

The Appeal Board decision on management issues (ALAB-772) is a particularly thoughtful and well-done review of the Licensing Board's decision. The Comission has not and indeed cannot point to anything in

. the Appeal Board decision which is either clearly erroneous or an abuse of discretion, neither is there any important question of law or policy -

'q involved. These are the proper triggers for Comission review. 10 CFR 2.786. Instead, the Comission, without finding that the Appeal Board erred, is requiring parties who have already prevailed before the Appeal Board to again meet the heavy burden of showing why the record should be reopened.

Further, the Comission has required the parties, in effect, to set out contentions they want to put forth at a hearing and the evidentiary bases for those contentions. The Comission intends not only to rule on whether the record should be reopened and remanded to the Licensing Board, but it also intends to rule on what specific contentions the Licensing Board may hear, if any. As I have said in the past, this is

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the kind of ruling best left in the hands of licensing boards which are '

perfectly capable of, and in fact were specifically set up for, handling such fact-specific adjudicatory rulings.

The Comission has also decided to solicit coments on whether the record should be reopened on the Hartman issues (ALAB-738) and based ,

upon the staff's latest evaluation of licensee management--NUREG-0680, Supp. No. 5. There has been so much new infomation on the management issue since the close of the Licensing Board record that the Licensing Board record clearly is stale. The following statement of the staff, standing alone, demonstrates the staleness of the Licensing Board record:

"The pattern of activity by Met-Ed, had it been known by

, c. the staff at the time the staff fomulated its positions on management in the restart proceeding would likely have resulted in a conclusion by the staff that Met Ed had not met the standard of reasonable assurance of no undue risk to the public health and safety."

NUREG-0680, Supp. No. 5, p. 2-2.

The Comission ought simply to acknowledge the obvious, reopen the record, and remand the case to the Licensing. Board for a dete'rmination I

on whether further hearings on these issues would be useful. The l parties to this proceeding have been asked repeatedly to coment on all

! this new infomation, and have repeatedly expressed opinions about the need to, or lack of a need to, reopen the record for a hearing.

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Obtaining further coments on this issue is nothing more than procedural window dressing and is a waste of time and energy for all concerned.

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The Commission ought to decide finally whether the TMI-1 Restart decision is to be based on a formal adjudicatory record or on an infornal record. If the Commission really thinks a formal record is necessary, as it said it did five years ago, it ought to stop playing procedural games, reopen the record and get these hearings moving. If the Commission instead intends to make its decision based partially on the informal record developed since the close of the Licensing Board record and not wait for the results of any hearings, the Commission ought to just make that decision and move on. Today's order accomplishes nothing but delay in either case.

• m a ag e' e

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