ML20214K660

Memorandum & Order Terminating Proceeding Re Hearing Concerning E Wallace & Removing Notification Requirement Per 860515 Advisory Opinion & Notice of Hearing.Served on 860820

ML20214K660
Person / Time
Site:	Three Mile Island
Issue date:	08/19/1986
From:	Smith I Atomic Safety and Licensing Board Panel
To:	GENERAL PUBLIC UTILITIES CORP., NRC OFFICE OF THE GENERAL COUNSEL (OGC), PENNSYLVANIA, COMMONWEALTH OF
References
CON-#386-372, CON-#386-3722 86-532-04-SP, 86-532-4-SP, ALJ-86-3, EW, RA-EW, NUDOCS 8608220021
Download: ML20214K660 (6)

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SNQD ALJ-86-?

UNITED STATES OF AMERICA W Als 3 g g NUCLEAR REGULATORY COMISSION Doc'T?'E S ' (^ 'N BRYC" ADMIflISTRATIVE LAW JUDGE Ivan W. Smith SERVQ AUGad1986 In the Matter of 1 h Dccket No. 50-289 EW EDWARD WALLACE 9

[ASLBPNo. 86-532-04-SP]

(GPU Nuclear, Three Mile Island, Unit No. 1) l))l August 19, 1986 MEMORANDUM AND ORDER TERMINATING PROCEEDING AND REMOVING NOTIFICATION REQUIREMENTS AS TO EDWARD WALLACE

Background

On October 25, 1979, the NRC Staff issued a Notice of Violation to the Metropolitan Edison Company, then the operator of Three Mile Island i

Units 1 and 2, for actions arising out of the TMI-2 accident.

Subsequently, in July 1984, the Staff issued a special report on its evaluation of the integrity of the Licensee's management as it might l

affect the restart of Unit 1. NUREG-0680, Supp. No. 5 (July 1984).

l l Among the concerns expressed by the Staff was its conclusion that Metropolitan Edison Company may have knowingly provided false

! infomation in the response to the Notice of Violation. However, since the two officials primarily responsible for the questioned response, l

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Robert Arnold and Edward Wallace, were no longer associated with TMI-1 l

activities, the Commission decided not to grant motions to reopen the

! record in the restart proceeding on that issue. Instead the Comission t

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imposed a requirement on Licensee to notify the Connission before returning either Mr. Wallace or Mr. Arnold to responsible positions at '

Unit 1. MetropolitanEdisonCompany,etal.(ThreeMileIslandNuclear Station, Unit _1),CLI-85-2,21NRC282,323(1985).

1 Both Mr. Arnold and Mr. Wallace took exception to the implication i respecting their reputations and integrity contained in CLI-85-2. Each l requested a hearing. On Decen6er 19, 1985 the Connission invited i

connents from interested persons on the requests for hearings. The Connission stated that, based on the infonnation submitted, it would consider initiating an adjudicatory hearing on whether the notification 4 requirement should be retaired. General Public Utilities Nuclear Corporation (Three Mile Island, Unit 1), CLI-85-19, 22 NRC 886, 889 l (1985).

Connents from some of the intervenors in the TMI-1 restart proceeding, the Connonwealth of Pennsylvania and the NRC Staff were I- submitted. On May 15, 1986 the Connission issued an Advisory Opinion .

1 and Notice of Hearing effectively exculpating Mr. Arnold (advisory opinion) and granting Mr. Wallace's hearing request (notice of hearing).

General Public Utilities Nuclear Corporation (Three Mile Island, Unit 1),CLI-86-9,23NRC465(1986). The Notice of Hearing provided l

for an adjudication before an administrative law judge under 10 CFR j

I Part 2 and set out the major benchmarks for the proceeding:

Any petitions to intervene by persons who responded by filing 4

i connents in response to CLI-85-19 shall be filed in accordance with 10 CFR 5 2.714 and, to be timely, shall be filed within l

45 days of the date of this Notice. No other interventions shall be pennitted except upon a balancing of the factors in I

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' 10CFRI2.714(a)(1). 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 advocate a position against Wallace, then the proceeding shall be terminated and the TMI-1 notification requirement as to Wallace shall be removed. LUnder11ning added.J

, 23 NRC at 472.

No petition to intervene has been filed.1 On June 30, 1986 the i

Connonwealth of Pennsylvania filed a timely petition for leave to participate as an interested state pursuant to 10 CFR I 2.715(c). On July 17, the NRC Staff reported that it does not advocate a position against Mr. Wallace. The matter is now ripe for decision.

Discussion In its petition to participate, the Commonwealth assumed that there would be a hearing and stated that:

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[T]he Commonwealth has no additional facts to offer, and has no independent means of obtaining information on the facts in i

dispute. However, the Commonwealth is interested in j

participating in the upcoming hearing to ensure that the facts are fairly presented and that the evidence is thoroughly analyzed. The Cannonwealth is not now advocating a position against Mr. Wallace.

Conmonwealth Petition at 4.

i j 1 The Advisory Opinion and Notice of Hearing, CLI-86-9, dated May 15,

1986, was published in the Federal Register on June 24, 1986.

51 Fed. Reg. 23008. Action under the Notice of Hearing has been deferred for at least 45 days following the publication date.

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As noted, the Staff, on July 17, 1986, reported that it does not advocate a position against Mr. Wallace.2 Also on July 17 the Staff answered the Commonwealth's petition by noting that no person petitioned to intervene and that neither the Staff nor the Comonwealth advocates a position against Mr. Wallace. Therefore, according to the Staff, effect must be given to the Comission directive, cited above, to terminate the proceeding. Staff Answer at 2-3.

Notwithstanding the Comission's directive and the failure of anyone to take a position against Mr. Wallace, the Commonwealth, on August 1, replied to the Staff's answer insisting that a hearing be held. The Comonwealth urges that the Staff be directed to carry the burden of proof despite the Staff's disinclination to do so.

Scarcely acknowledging the Comission's directive to terminate the proceedingabsentanadversaryagainstMr.Wallace(Replyat3)the Comonwealth advances three principal arguments why, in its view, a hearing must be held. Each is discussed in the following paragraphs.

(1) The Comission directed the Staff to participate in a hearing.

Comonwealth Reply at 2, 4, 6. In this argument the Comonwealth is apparently alluding to the Comission's order in the Notice of Hearing that "NRC Staff shall participate as a party." 23 NRC at 472. In the full context of the Notice, however, it is clear the Comission intended l ,

i 2 Letter from Mary Wagner, counsel for NRC Staff, to Judge Ivan W.

Smith, July 17, 1986.

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d 5-for the Staff to participate only if there is a hearing initiated by someone advocating a position against Mr. Wallace.

(2) The Comonwealth elected to participate as a state rather than as a party because it does not have the facts in its possession and therefore cannot meet the burden of going forward and persuasion. Only the NRC Staff has the facts, knowledge and information to meet this burden. Comonwealth Reply at 3. .

Given the Commission's directive to terminate the proceeding if no one takes a position against Mr. Wallace, the Comonwealth's second argument is irrelevant. However, the record of this proceeding should I not close with the suggestion that Mr. Wallace has escaped the notification requirement solely as a consequence of a default by the NRC Staff. The Comonwealth has participated fully in the TMI-1 restart proceeding since its inception seven years ago. Its counsel must be i

1 aware that if there were a hearing, the Comonwealth would have at its comand, through the discovery regulations of Part 2 and the Freedom of l

InformationAct(5USC552),completeaccesstoanyevidenceagainst l Mr. Wallace. ,

(3) A hearing is necessary in light of the Commission's and Staff's prior statements regarding Mr. Wallace. The Comission found that Mr. Wallace's name cannot be cleared without additional evidence.

i Comonwealth Reply at 5-9.

The Comonwealth's third argument is directed to the Commission's policy determination to place the burdens of going forward and persuasion on any party who advocates a position against Mr. Wallace.

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That determination is binding upon the presiding officer of this proceeding and the Connonwealth's third argument may not be considered.

In sum, the Consonwealth has not advanced any reason not to comply with the Commission's directive to terminate the proceeding if no one advocates a position against Mr. Wallace.

Order (1) This proceeding is terminated.

(2) Pursuant to the delegation to the presiding officer in the Commission's Advisory Opinion and Notice of Hearing dated May 15, 1986, the TMI-1 notification requirement as to Mr. Wallace is. removed.

Appeal This order may be appealed to the Atomic Safety and Licensing Appeal Board within ten days following its service.

f Ivan W. Smith ADMINISTRATIVE LAW JUDGE Bethesda, Maryland August 19, 1986

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