ML20210E344
| ML20210E344 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 09/19/1986 |
| From: | Himmel M GENERAL PUBLIC UTILITIES CORP., GREENBAUM, ROWE, SMITH, RAVIN, DAVIS & BERGSTEIN |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#386-799 RA-EW, NUDOCS 8609240090 | |
| Download: ML20210E344 (36) | |
Text
799 I DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 16 SEP 22 P2:16 BEFORE THE ATOMIC SAFETY GFFICf or t: '<
AND LICENSING APPEAL BOARD 00CKET"a 3 u:n In the Matter of )
)
EDWARD WALLACE ) Docket No. 50-289 EW
)
(GPU Nuclear Corp., Three )
Mile Island Nuclear )
Station, Unit No. 1) )
BRIEF OF EDWARD WALLACE IN OPPOSITION TO APPEAL OF THE COMMONWEALTH OF PENNSYLVANIA OF THE AUGUST 19, 1986 MEMORANDUM AND ORDER TERMINATING PROCEEDING AND REMOVING NOTIFICATION REQUIREMENT Michael B. Himmel, Esq. Greenbaum, Rowe, Smith, Ravin, Of Counsel Davis & Bergstein Engelhard Building P.O. Box 5600 Michael B. Himmel, Esq. Woodbridge, NJ 07095 Alain Leibman, Esq. (201) 549-5600 On the Brief Attorneys for Respondent Edward Wallace koj920090860919 G DOCK osooggg9 l PDR l
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TABLE OF CONTENTS PAGE Table of Authorities................................... 11 1
I. Statement of the Case .............................
II. Summary of the Argument ........................... 5 III. Argument .......................................... 6 A. The Licensing Board Properly Terminated this Proceeding and Removed the Notification Requirement as to Mr. Wa11 ace................. 6 B. Terminating this Proceeding and Removing the Notification Requirement as to Mr.
Wallace Did Not Violate any of the Commonwealth's Rights ........................ 13 IV. Conclusion ........................................ 28 i
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TABLE OF CITATIONS United States Constitution PAGE Due Process Clause, Fifth Amendment...................... 21 CASES Federal Cases City of West Chicaco, Ill. v. United States Nuclear Regulatory Commission, 701 F.2d 632 (7th Cir. 1983)... 15 Her:kler v. Chaney, 470 U.S. 821 (1985).................... 27 In re Three Mile Island Alert, Inc., 771 F.2d 720 (1985),
cert, denied, 106 S. Ct. 1460 (1986)................... 13, 17 Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978)............. 18 AEC and NRC Adjudications Commonwealth Edison Co n (Zion Station, Units 1 and 2),
ALAB-616, 12 NRC 419 (1980)............................. 11 Commonwealth Edison Co. (Carroll County Site),
ALAB-601, 12 NRC 18 (1980).............................. 11 Duquesne Licht Co. (Beaver Valley Power Station, Unit 2), LBP-84-6, 19 NRC 393 (1984).................... 10 General Public Utilities Nuclear Corporation (Three Mile Island Nuclear Station, Unit 1),
CLI-85-19, 22 NRC 886 (1985)............................ 2 General Public Utilities Nuclear Corporation (Three Mile Island Nuclear Station, Unit 1),
CLI-86-9, 23 NRC 465 (1986)............................. 3, 6, 7, 8, 19, 20 Gulf States Utilities Co. (River Bend Station, Units 1 and 2), ALAB-183, 7 AEC 222 (1974).............. 14 Houston Lightinc and Power Co. (South Texas Project, Units 1 and 2), LBP-79-27, 10 NRC 563, 565-69 (1979), aff'd summarily on opinion below, ALAB-575, 11 NRC 14 (1980).. 17
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PAGE Inquiry Into Three Mile Island Unit 2 Leak Rate Data Falsification, CLI-85-18, 22 NRC 877 (1985)........ 21 Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1), CLI-85-2, 21 NRC 282 (1985).................................................. 1, 2, 5, 19, 21 Metropolitan Edison Comoany (Three Mile Island Nuclear Station, Unit No. 1), CLI-82-31, 16 NRC 1236 (1982)............................................. 11 New Encland Power Co. (NEP, Units 1 and 2),
7 NRC 271 (1978)........................................ 11 Niacara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), LBP-83-45, 18 NRC 213 (1983).............................................. 10 Northern States Power Co. (Tyrone Energy Park, Unit 1), CLI-80-36, 12 NRC 523 (1980)................... 10 Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB 316, 3 NRC 167 (1976).............................. 11 Reich Geo-Physical, Inc., ALJ-85-1, 22 NRC 941 (1985).................................................... 25 Southern California Edison Co. (San Onofre Nuclear Generating Station, Unit 1), CLI-85-10, 21 NRC 1569 (1985), app. filed sub. nom., Sierra Club, et al. v. United States Nuclear Regulatory Commission, No. 85-7003, 9th Cir. Jan. 3, 1985...................... 18 Statutes
! Atomic Energy Act of 1954, $189, 42 U.S.C.A.
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$2239(a) (1983 supp.)................................... 14, 15, 16, 17 Atomic Energy Act of 1954, $161(c), 42 U.S.C.
$2201(c) (1970)......................................... 21
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PAGE Regulations 10 C.F.R. Part 2.......................................... 20 10 C.F.R. Part 2, Subpart G............................... 2, 8, 20 10 C.F.R. $2.104.......................................... 15 10 C.F.R. 52.105.......................................... 15, 21 10 C.F.R. 52.206.......................................... 21, 22 10 C.F.R. 52.700.......................................... 21 10 C.F.R. $2.702.......................................... 21 10 C.F.R. 52.714.......................................... 2, 3,
- 9, 12, 21 10 C.F.R. 52.714(a)....................................... 21 10 C.F.R. $2.714(b)....................................... 8 10 C.F.R. 52.715.......................................... 3 10 C.F.R. $2.715(c)....................................... 8, 9, 10 10 C.F.R. $2.717.......................................... 21 10 C.F.R. 52.721.......................................... 21 10 C.F.R. 52.732.......................................... 25 10 C.F.R. $7.744(d)....................................... 23 10 C.F.R. $2.754.......................................... 8 10 C.F.R. $2.762.......................................... 8 10 C.F.R 52.786........................................... 9-10 C.F.R. $2.790(a)....................................... 23
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I. Statement of the Case Responding to motions to reopen the record of the restart proceeding on TMI-1 on various issues, the Commission issued an order on February 25, 1985 which, among other things, required the licensee to notify the NRC before returning Edward Wallace to a responsible position at TMI-1. Metropolitan Edison Company (Three Mile Nuclear Station, Unit No. 1),
CLI-85-2,-21 NRC 282 (1985). On March 27, 1985, Mr. Wallace requested an opportunity to respond to certain statements made in the course of the restart proceeding by various Staff Offi-ces of the Nuclear Regulatory Commission. The statements alleged that he was partially responsible for a material false statement in the December 5, 1979 response submitted by Metro-politan Edison Company (then the holder of the operating license for Three Mile Island, Units 1 and 2) to a Notice of Violation ("NOV") issued in relation to the TMI-2 accident.
The NRC Staff issued the NOV on October 25, 1979.
Mr. Wallace sought to respond to the statements because they damaged his reputation and constrained his future participation in activities regulated by the NRC. For example, based on those statements, GPU Nuclear, the current holder of the TMI-1 operating license, was directed to notify the NRC p.rior to returning Mr. Wallace to any responsible position at TMI-1. TMI-1, CLI-85-2, 21 NRC at 323.
In response to his request, the Commission issued an Order inviting written submissions from interested persons,
particularly parties to the TMI-1 restart proceeding. The Com-mission stated:
If based on the information sub-mitted by commenters or otherwise available to it, the Commission determines that there is infor-mation which could form a reaso-nable basis for concluding that
...Wallace... willfully, knowingly, or with reckless disregard for the truth made a material false state-ment to the NRC, it will consider initiating an adjudicatory hearing to resolve whether to recain the notification requirement in CLI-85-2.
General Public Utilities Nuclear Corporation (Three Mile Island Nuclear Station, Unit 1), CLI-85-19, 22 NRC 886, 889 (1985).
The Commission received comments from a number of entities, including the Commonwealth of Pennsylvania
(" Commonwealth"). The Commonwealth argued that (1) the pro-ceeding was not authorized under the Commission's Rules of Practice; (2) there was no request from the licensee (GPU Nuclear) to return Mr. Wallace to a responsible position at TMI 1; (3) Mr. Wallace in essence was attempting to reopen the record in CLI-85-2; (4) prior to granting such request the Com-mission should apply its traditional standards governing motions to reopen; and (5) in any event the Commonwealth could not offer additional facts because it had no independent means of obtaining information on the issue in dispute. Commonwealth of Pennsylvania's Comments on Commission Order CLI-85-19, January 24, 1986.
On May 15, 1986, the Commission issued an Advisory Opinion and Notice of Hearing responding to these and other comments and establishing the procedure and scope of this pro-ceeding. As pertinent here, the Commission held that (1) sub-ject to the conditions set forth below, a hearing was to be j
conducted pursuant to its Rules of Practice (10 C.F.R. Part 2, i Subpart G); (2) petitions to intervene were to be filed in accordance with 10 C.F.R. 52.714; (3) the NRC Staff was to par-l ticipate as a party; (4) any party advocating that Mr. Wallace
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made a knowing, willful, or recklaas material false statement in response to the NOV was to assume the burden of going for-ward and persuasion; and (5) "(1]f no person intervene [d]
l against Wallace and NRC Staff (did] not advocate a position against Wallace, then the proceeding (was to] be terminated and l
the TMI-1 notification requirement as to Wallace [would) be removed." General Public Utilities Nuclear Corporation (Three Mile Island Nuclear Station, Unit 1), CLI-86-9, 23 NRC 465, 472 (1986).
No person or entity petitioned to intervene under 10 <
C.F.R. $2.714. Moreover, the NRC Staff did not elect to advo-l cate a position against Mr. Wallace (July 17, 1986 letter from j Mary E. Wagner, Counsel for NRC Staff to the Honorable Ivan W.
i Smith). The only request for participation in the proceeding i
j at all came from the Commonwealth and it sought only interested State status pursuant to 10 C.F.R. 52.715. The commonwealth acknowledged that it "ha(d] no additional facts to offer, and l
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ha(d) no independent means of obtaining information on the facts in dispute." It stated expressly that "[t]he Commonwealth
[was] not [then] advocating a position against Mr. Wallace."
l Commonwealth of Pennsylvania's Petition for Leave to Par-ticipate as an Interested State, June 30, 1986 at 2.
The Staff opposed the Commonwealth's petition. It contended that because no one had filed a petition to intervene under Section 2.714 and the Staff was not advocating a position against Mr. Wallace, no adjudicatory hearing would be held.
Since no adjudicatory hearing would be held, the Commonwealth's petition to participate in such a hearing could not be granted.
NRC Staff Answer to Commonwealth of Pennsylvania's Petition to Participate as an Interested State, July 17, 1986 at 2.
By Memorandum and Order issued August 19, 1986 the Licensing Board terminated the proceeding and removed the noti-fication requirement as to Mr. Wallace. The Commonwealth now appeals that decision.
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II. Summary of Araument The Licensing Board properly terminated the proceeding and removed the notification requirement imposed in CLI-85-2 as to Mr. Wallace. The Commission's May 15, 1986 Advisory Opinion and Notice of Hearing and its Rules of Practice prescribed an adjudicatory hearing oniv if an interested party intervened in the proceeding and advocated a position against Mr. Wallace, or if the NRC Staff advocated a position against Mr. Wallace.
Neither of these essential criteria was met. As a result, the Licensing Board was compelled by its grant of authority from the Commission to dismiss the proceeding and to remove the notification requirement.
The action of the Licensing Board did not violate any of the Commonwealth's rights. All persons with an interest affected by this proceeding were given the opportunity to intervene and raise issues within the scope of the hearing. No one, not even the Commonwealth, chose to do so. Accordingly, l
no adjudicatory hearing was required to be held under these circumstances and the Commonwealth appeal should be denied.
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III. Argument A. The Licensing Board Properly Terminated This Proceeding and Removed the Notification Requirement as to Mr. Wallace The Commonwealth appears to argue that the Commission has directed that an adjudicatory hearing be held prior to the lifting of the notification requirement a.s to Mr. Wallace. It claims that the Commission has already ruled that it cannot clear Mr. Wallace's name without additional evidence, evidence that the Commonwealth believes is in the possession of the Staff and which it believes the Commission ordered be adduced at an adjudicatory hearing. Commonwealth of Pennsylvania's Brief in Support of Appeal ("Com. Br."), September 4, 1986 at
- 13. The Commonwealth also asserts that the Staff was required by the Commission to take a position adverse to that of Mr. Wallace and that the Licensing Board should have required the Staff to " participate in the hearing and present its evidence" (Id. at 15).
These arguments reflect a fundamental misunderstanding of the Advisory Opinion and Notice of Hearing, in which the Commission established a number of conditions that had to be satisfied before the Licensing Board could commence an adju-dicatory hearing. These conditions included: (1) the admission as full parties to the hearing of those interested persons requesting to participate and (2) the willingness of those parties or the NRC Staff to advocate a position against Mr. Wallace. TMI-1, CLI-86-9, 23 NRC at 472.
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Contrary to the argument of the Commonwealth, the Com-mission did not direct the Staff to advocate a position against Mr. Wallace. In fact, the Commission specifically provided for the possibility that the Staff might not advocate a position against Mr. Wallace. It instructed the Licensing Board that "if no person intervenes against Wallace and NRC Staff does not advocate a position aaainst Wallace, then the proceeding shall be terminated and the TMI-1 notification requirement as to Wallace shall be removed." TMI-1, CLI-86-9, 23 NRC at 472 (emphasis added).
In view of these instructions, the Commonwealth's arguments raise two fundamental questions. First, whether the conditions established by the Commission for the commencement .
of an adjudicatory hearing in this proceeding were satisfied.
Second, whether, if the conditions were not satisfied, the
. Licensing Board was nevertheless required to hold an adjudica-tory hearing prior to lifting the notification requirement as to Mr. Wallace.
l l 1. The criteria established by the Commission for a hearina were not satisfied Clearly, the first question must be answered in the negative. The Staff did not advocate a position against Mr.
Wallace. The Commonwealth did not advocate a position against Mr. Wallace. No member of the public sought intervention to advocate a position against Mr. Wallace. In short, the essen-tial precondition for an adjudicatory hearing established by l
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the Commission - the willingness of some party to the pro-
$ coeding to raise an issue within the scope of the Notice of 1
Hearing - was not satisfied.
The filing by the Commonwealth of a petition under
) Section 2.715(c) to participate as an interested State does not satisfy the precondition for a hearing. The Commission spe-I cified in its Advisory Opinion and Notice of Hearing that 10 f
C.F.R. Part 2, subpart G applies to the instant proceeding.
TMI-1, CLI-86-9, 23 NRC at 472. Subpart G provides that unless a petitioner for intervention submits a litigable contention with basis and specificity, the petitioner will not be admitted as a party to the proceeding. See 10 C.F.R. 52.714(b).
Under 10 C.F.R. 52.715(c), the Commonwealth's l
petition to participate as an interested State would allow it to participate in a proceeding only if one were being i
i conducted. Interested state status does not permit the i
Commonwealth to cause a hearing to be convened or determine t
' what role, if any, other potential participants (such as i
- the NRC Staff) shall undertake to force the commencement of a hearing. Similarly, while 10 C.F.R. 52.15(c) would
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permit the Commonwealth to (1) file proposed finding of facts and conclusions of law pursuant to Section 52.754 if there were a record, or (2) take an appeal pursuant i
l to 10 C.F.R. 52.762 if there were an initial decision l
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by a presiding officer from which to appeal, or (3) seek Com-mission review pursuant to Section $2.786 of an Appeal Board i
decision if there were one, none of this has any applicability i
i when, as here, the conditions required to commence an adjudica-tory hearing have not been satisfied.
The filing and acceptance of the Pennsylvania petition pursuant to 10 C.F.R. 52.715(c) only permits it to participate in the adjudica-tory hearing if one is held. The Atomic Energy Act of 1954, as
, amended, does not prescribe a man-datory hearing for deciding an operating license application.
i Section 189a. A need for a hearing has not been established in this proceeding. No petitioner -
has submitted a litigable conten-tion as required by 10 C.F.R.
- $2.714, to necessitate the holding j of a hearing. The filing and acceptance of the Pennsylvania petition to participate under the provision of Section 2.715(c) does not trigger a hearing...The State has not sought a hearing in this matter. It opted to have the Licensing Board explore proposed contentions of a petitioner, which, after review, were found not to warrant consideration because they failed to meet Com-mission standards. Pennsylvania could have sought full party sta-tus under 10 C.F.R. $2.714, for filing its own contentions, which it chose not to do...
The acceptance of Pennsylvania as a participant to the proceeding as an interested State under 10 C.F.R. 52.715(c) and its filing of a statement of concerns has not presented the Licensing Board with anyting to adjudicate and for which a hearing should be held.
Duquesne Llaht Co. (Beaver Valley Power Station, Unit 2),
LBF-84-6, 19 NRC 393, 426-27 (1984) (citations omitted); see Niacara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), LBF-83-45, 18 NRC 213, 216 (1983). ("The filing of the New York State petition under 10 C.F.R. 52.715(c) does not loso facto trigger the holding of a hearing"); Northern States Power Co. (Tyrone Energy Park, Unit 1), CLI-80-36, 12 NRC 523, 527 (1980) (separate views of Chairman Ahearne and Commissioner Hendrie) ("Section 2.715(c) grants states and state agencies s
special status in NRC proceedings. However, a request under
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this section does not itself trigger a hearing").
The Commission's Advisory Opinion and Notice of Hearing established that before an adjudicatory hearing could be commenced, a party to the proceeding or the NRC Staff had to advocate a position against Mr. Wallace, which failed to occur.
As a result, the Licensing Board properly terminated the pro-ceeding and lifted the notification requirement as to Mr.
Wallace, notwithstanding the Commonwealth's petition under Sec-l tion 2.715(c).
i l 2. The Licensing Board lacked jurisdiction to hold a hearina since the criteria were not met The second fundamental question raised by the Common-wealth's appeal is whether the Licensing Board should have com-menced an adjudicatory hearing even though the conditions established by the Commission for such a hearing were not satisfied. On its face, that proposition lacks any merit.
"It is settled that, in determining whether it is empowered to entertain a particular issue, a licensing board .
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must respect the terms of the notice of hearing published by the Commission for the proceeding in question." Commonwealth Edison Co. (Carroll County Site), ALAB-601, 12 NRC 18 (1980)
(affirming dismissal of intervention petition where proferred contentions were outside of the scope of the issues raised in the notice of hearing). " Licensing boards are delegates of the Commission and exercise only those powers which the Commission has given them." New Enaland Power Co. (NEP, Units 1 and 2), 7 NRC 271, 279 (1978) (board does not have power.to direct the Staff in the performance of its independent responsibilities),
i The jurisdiction of a licensing board is " limited by the Com-mission's notice of hearing." Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB 616, 12 NRC 419,' 426 (1980)
(affirming decision of licensing board to exclude testimony i outside of the issues properly before it), citina Public Ser-vice Company of Indiana, Inc. (Marble Hill Nuclear Generating l Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976);
see Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), CLI-82-31, 16 NRC 1236, 1238-39 (1982) (board does not have jurisdiction under Notice of Hearing issued by Con-mission to impose civil penalty).
The Commonwealth argues that in spite of direct instructions from the Commission to the contrary, the Licensing Board should have " order (ed)" (Com. Br. at 11) the Staff to
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advocate a position contrary to that of Mr. Wallace. It also maintains that the Board should have commenced an adjudicatory hearing even though the conditions established by the Com-mission that were to be satisfied before doing so were not met.
In essence, the Commonwealth demands that the Licensing Board and now this Appeal Board vacate aspects of the Commission's Advisory Opinion and Order by requiring a hearing where none has been sought under 10 C.F.R. $2.714 and the terms of that Advisory Opinion. The Licensing Board plainly was without authority to ignore or contravene the terms of the Advisory Opinion and Order.
Essentially, the Commonwealth argues that the Commission's Advisory Opinion and Order should now be over-turned or vacated. In order to obtain that relief, though, the only course open to the Commonwealth was to have petitioned the Commission for reconsideration and modification of its May 15, 1986, Advisory Opinion and Notice of Hearing'and, if that peti-tion was denied, to have sought review in the United States Court of Appeals. The Commonwealth, however, did not take these steps and the time for doing so has long since expired.
B. Terminating This Proceeding and Removing the Notification Requirement as to Mr. Wallace Did Not Violate Any of the Commonwealth's Richts The Commonwealth raises a number of arguments that suggeot the Licensing Board should be reversed because it some-how violated the Commonwealth's rights. These arguments rest on a misunderstanding of the Commonwealth's rights under the Atomic Energy Act ("The Act"), the Commission's regulations and certain judicial decisions.1
- 1. No hearina was required to be held The Commonwealth first argues that because the
" Commission attributed great significance to the fact that [Mr.
Wallace was) no longer involved in the management of TMI-1,"
for it to now lift the notification requirement invalidates the
" Commission's favorable conclusion concerning management com-petence and integrity." Com. Br. at 9. In so arguing, the Com-monwealth somehow assumes that the lifting of the notification requirement implicates the Commission's restart order and the decision of the United States Court of Appeals affirming it, In re Three Mile Island Alert, Inc., 771 F.2d 720 (3d Cir. 1985),
cert. denied, 106 S. Ct. 1460 (1986). The Commonwealth seems to conclude that because of the unarticulated relationship bet-ween this proceeding and previous Commission and judicial pro-ceedings, the Commission is required to hold an adjudicatory hearing. Com. Br. at 9-10.
1 Although Mr. Wallace responds to these arguments, he does not concede that they are properly raised. They constitute a legal challenge to the Commission's May 15, 1986 Advisory Opi-nion and Notice of Hearing. If the Commonwealth believed that the procedures established by the Commission were unlawful, it should have sought reconsideration from the Commission and not from its tribunals, which manifestly have no authority to grant the relief the Commonwealth seeks. See pages 11-12, supra.
No authority is cited in support of the Commonwealth's position and none exists. The applicable statutory, regulatory and judicial pronouncements all establish that the Commission is not required to hold an adjudicatory hearing before lifting the notification requirement.
As relevant to this proceeding, section 189a of the Act, 42 U.S.C. $2239(a), mandates a hearing only in one cir-cumstance: when the Commission proposes to issue a permit authorizing the construction of a power reactor. Section 189a of the Act states:
In any proceeding under this Act, for the granting, suspending, revoking, or amending of any license or construction permit...the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit such person as a party to such proceeding. The.Com-mission shall hold a hearing after thirty days' notice and publica-tion once in the Federal Register, on each application under section 103 or 104b. for a construction permit for a facility, ...In cases where such a construction permit has been issued following the holding of such a hearing, the Commission may, in the absence of a request therefor by any person whose interest may be affected, issue an operating license or an amendment to a construction permit or an amendment to a operating license without a hearing...
See Gulf States Utilites Co. (River Bend Station, Units 1 and 2), ALAB-183, 7 AEC 222, 226'n.10 (1974) ("In an operating
1 license proceeding, unlike a construction permit proceeding, a hearing is not mandatory").
Accordingly, in Section 189a Congress identified only one circumstance, not involved here, where the Commission must hold a hearing even when one is not requested. In regard to the granting, suspension, revocation, or amendment of a license, the Commission is required to hold a hearing only at the request of an interested person.
The second sentence of Section 189(a) provides that NRC shall automatically hold a hearing on certain applications for a
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construction permit even absent a request for a hearing. The first sentence of Section 189(a) on the other hand requires NRC'to grant a hearing only upon the requst of an interested person.
City of West Chicaco, Ill. v. United States Nuclear Regulatory Commission, 701 F.2d 632, 639 (7th Cir. 1983) (when issuing certain types of licenses, the Commission is not required by Section 189a to hold a hearing in the absence of a request for one by an interested party). This differing treatment is i reflected in the Commission's regulations. Compare 10 C.F.R. 52.104 (governing applications for which a hearing is required) with,10 C.F.R. $2.105 (governing applications for which a hearing is required only at the request of an interested person).
The request by Mr. Wallace for an opportunity to l respond to the statements made about him by the NRC Staff is l
not an application for a construction permit. Therefore, the Commission-is not required by Section 189a to hold a hearing in the absence of an appropriate request for one.
Further,.Mr. Wallace has not sought the granting, suspension, revocation, or amendment of a license, an event for which a hearing is required when requested by interested persons, a condition in any event not met in this proceeding 2 In the spirit of fundamental fairness, he sought primarily to address statements about him which were not supported by the weight of the evidence. Assuming that the relief to be granted involves lifting the notification requirement, this requirement is not part of the TMI-1 operating license. It does not constitute a license condition, contrary to the suggestions of the Commonwealth (Com. Br. at 10). The notification require-ment was a condition imposed by the Commission when it lifted the order shutting down TMI-1. Lifting this condition is not the type of action delineated in Section 189a for which a hearing shall be held if requested by an interested party.
It is true that the Commission, as a condition of lifting its shut-down order, has imposed numerous restrictions on the way in which the licensee may exercise its existing authority, but peti-2 See Section III.A., supra.
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tieners have pointed us to nothing in this record which indicates the Commission has purported to effect amendments to the license or that license amendments are necessary to permit the licensee to operate in accordance with the restrictions which have been imposed. The imposition of con-ditions on the lifting of the stay and thus on the licensee's interim operations does not establish that the Commission has purported to amend the outstanding license since the Commission's regulations may be imposed during the course of a proceeding to determine whether or not license amendments or other actions are appropriate.
...We hold only that Section 189(a) is not implicated when the Commission enters an order lifting a suspension so that a licensee may operate under existing authority during the course of an enforcement proceeding.
In re Three Mile IsFand Alert, Inc., 771 F.2d at 729-30.3 As a result of the unique circumstances surrounding TMI-1, the Commission, in its discretion, provided the oppor-tunity for an adjudicatory hearing with regard to the restart 3 If anything, the Commonwealth's claim that the Commission is required to hold an adjudicatory hearing amounts to an attempt to relitigate the legal status of the notification requirement vis-a-vis the hearing requiremento of section 189a.
But the law on that question has already been decided. In re Three Mile Island Alert, Inc., 771 F.2d at 728-30. The Common-wealth may not and should not be permitted to litigate the issue for a second time. See Houston Lichtina and Power Co.
(South Texas Project, Units 1 and 2), LBP-79-27, 10 URC 563, 1 565-69 (1979), aff'd summarily on opinion telow, ALAB-575, 11 NRC 14 (1980) (discussing the applicability of res judicata and c'ollateral estoppel to ifRC proceedings) .
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of TMI-1. It "did not establish an agency requirement for hearings on the lifting of license suspensions." Southern California Edison Co. (San Onofre Nuclear Generating Station, Unit 1), CLI-85-10, 21 NRC 1569, 1575 n.7 (1985), ano filed sub. nom., Sierra Club. et al. v. United States Nuclear Regula-tory Commission, No. 85-7003, 9th Cir., Jan. 3, 1985. A number of parties took advantage of that opportunity and extensive hearings were held.
In this proceeding Mr. Wallace asked for an oppor-tunity to clear his name. He requested that the Commission provide "an objective forum in which [he] would have an oppor-tunity to establish that the statements which have thus injured
[him] are not supported by the weight of the evidence" (March 27, 1985 letter from Robert C. Arnold and Edward G. Wallace to the Commissioners at 3). Mr. Wallace specifically recognized that some procedure other than a formal adjudicatory hearing could provide a means to resolve the matter with a lesser bur-den on the Commission's resources (Id. at 2-3).
The Commission determined that an adjudicatory pro-ceeding should be provided if any interested persons (including l
l the Commonwealth) or the NRC Staff advocated a position against Mr. Wallace. No one elected to do so. For the Commonwealth to l
l argue now that the Commission is nevertheless required to hold u an adjudicatory hearing " borders on the Kafkaesque." Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Coun-cil, Inc., 435 U.S. 519, 557 (1978).
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- 2. The proceeding established by the Commission was procedurally correct The Commonwealth also argues that the proceeding established by CLI-86-9 was flawed in several respects. These claims are difficult to understand and it is not clear how, if at all, they relate to each other.
The Commonwealth first argues that the commission did not address the question whether Mr. Wallace brought his con-cerns to the Commission in a timely manner. Apparently the Commonwealth believes that the Commission should have con-sidered the timeliness of his request, having " presumably" established this special proceeding because Mr. Wallace "did not have an opportunity to comment on the Commission's findings in the course of the restart proceeding" (Com. Br. at 15-16).
The Commonwealth's argument rests on the faulty pre-mise that the Commission granted Mr. Wallace an opportunity to comment on certain findings during the restart proceeding. Mr.
Wallace sought an opportunity as a matter of fairness to clear his name after it became evident that one impact of the state-ments he sought to challenge amounted to a sanction against l
him. That sanction became effective on February 25, 1985, when the Commission ruled in connection with the TMI-1 restart pro-l ceeding that the notification requirement should be imposed.
TMI-1, CLI-85-2, 21 NRC at 323. Mr. Wallace filed his request with the Commission the following March 27, 1985. Thus, Mr.
Wallace moved promptly after the Commission acted. It is
O inconceivable that he could have done so any sooner or that it would have been meaningful to comment on the Commission action befor'J it was even taken.
The Commonwealth next argues that "this special pro-ceeding is not authorized by the Rules of the Commission" (Com.
Br. at 16). It claims that 10 C.F.R. Part 2 applies only to proceedings for the issuance, amendment or transfer of a license, for the imposition of requirements by order, for the modification, suspension or revocation of a license, and for the issuance of operating licenses. The Commonwealth apparently concludes that because the holder of the operating license for TMI-1 has not requested that Mr. Wallace return to a responsible position at TMI-1, Mr. Wallace's request does not trigger one of the proceedings to which Part 2 applies. Com.
Br. at 16-17.
The Commonwealth misreads Part 2. This special pro-ceeding is to be governed by Subpart G to 10 C.F.R. Part 2.
TMI-1, CLI-86-9, 23 NRC at 472. Subpart G governs "all adjudi-cations initiated by the issuance of...a notice of hearing...."
10 C.F.R.52.700. The instant proceeding was initiated when the Commission issued its Advisory Opinion and Notice of Hearina on May 15, 1986. TMI-1, CLI-86-9, 23 NRC at 466.
In any event, should Subpart.G by its own force not-govern this special proceeding, it does not follow that the Commonwealth is correct. The Commission is empowered by the Atomic Enargy Act to " hold such... hearings as the Commission may deem necessary or proper to assist it in...the enforcement of this (Act). ... " Section 161c of the Act, 42 U.S.C.
i
$2201(c). It may delegate this authority to its adjudicatory tribunals (10 C.F.R. $$2.105, 2.700, 2.702, 2.714, 2.714a, 2.717 and 2.721) and it may establish separate rules of prac-tice and procedure to govern _these proceedings (e.a., Inauiry Into Three Mile Island Unit 2 Leak Rate Data Falsification, J
CLI-85-18, 22 NRC 877, 881-84 (1985) (establishing special pro-
- cedures to govern proceeding)).
- Apart from the question whether this proceeding was required by either the Atomic Energy Act or the Due Process Clause of the Fifth Amendment (see TMI-1, CLI-85-2, 21 NRC at 314-17) (granting an individual barred from supervisory respon-i sibilities by a condition of the TMI-1 restart Order an oppor-tunity for a hearing)), it clearly is authorized by Section 161c of the Act. Moreover, given the discussion above, the Commission may delegate its authority to hold such a hearing to an adjudicatory tribunal and establish the rules of procedure to govern the proceeding, as the Commission did here. Accor-dingly, the Commonwealth's claim that this proceeding is not authorized by the Commission's rules should be rejected.
The Commonwealth further contends that a petition filed pursuant to 10 C.F.R. 52.206 "might be" an alternative method to resolve the issues raised by Mr. Wallace. (Com. Br.
at 17). Had Mr. Wallace flied such a petition, the argument goes, a decision by the Director of the Office of Nuclear Regu-
lation ("NRR") would have been a record for the commission and other parties to review. The Commonwealth apparently assumes that the petition should have been filed with the Director of the NRR (Com. Br. at 17-18).
However, even if Section 2.206 applies to the imposi-tion of NRC sanctions involving individuals (a proposition with which Mr. Wallace disagrees), the commonwealth itself recogni-zes that Mr. Wallace is seeking relief from statements made by the Office of Inspection and Enforcement and the Office of Investigations, not just NRR (Com Br. at 6-8). Filing a peti-tion with NRR would have limited Mr. Wallace to a forum capable of addressing only some of those statements. In addition, nothing in Section 2.206 authorizes the filing of such a peti-tion with the Office of Investigations. Mr. Wallace had no reasonable alternative but to submit his request to the Com-
. mission, the only component of the NRC with jurisdiction over l
the entire Staff.
(
Moreover, it is difficult to understand how, as the Commonwealth suggests, a record would have been developed that is any more complete than that already generated. Section 2.206 requires that the Staff either institute the requested
- proceeding or " advise the person who made the request in writing that no proceeding will be instituted...and the reasons therefor." The Staff is not required to generate a massive record. Nor would the Staff have been required to explain why the Commission "did not discuss the facts that it found rele-vant to its statement that Mr. Wallace could not be cleared without additional evidence", a matter apparently of concern to the Commenwealth. (Com. Br. at 18).4 Accordingly, this argu-ment should be rejected.
The Commonwealth next asserts that the proceeding is flawed because no "outside party would be able to obtain all the evidence in possession of the NRC" (Com. Br. at 18). This argument ignores certain Rules of Practico designed to assure the availability of adequate discovery against the Staff. For example, the Commonwealth recites that handwritten notes and drafts'are exempt from public disclosure (and therefore presu-mably nondiscoverable) because they do.not fall within the term
" final records and documents" (Com. Br. at 18). See 10 C.F.R. 92.790(a) n. 8. From this the Commonwealth postulates that meaningful discovery against the Staff -- the entity having custody over certain key documents -- would be limited. But
! the Commonwealth fails to cite Section 2.744(d), which pro-l vides as follows:
Upon a determination by the pre-siding officer that the requesting party has demonstrated the rele-vancy of the record or document and that its production is not exempt from disclosure under l
$2.790 or that if exempt, its l
l 4 In any event Section 2.206 does not itself provide for any type of public involvement by third parties, such as the Com-monwealth. It seems implausible for the Commonwealth to advo-cate that Mr. Wallace should have followed a procedure that would not have permitted Commonwealth involvement from the time the petition was filed.
disclosure is necessary to a proper decision in the proceedina, and the document or the infor-nation therein is not reasonably obtainable from another source, he shall order the Executive Director for Operations, to produce the document.
(emphasis added). Therefore, the Commonwealth's claim should be rejected.
Finally, the Commonwealth argues that the proceeding is flawed because the Commission directed those advocating a position against Mr. Wallace to " carry the burden of proof" (Com. Br. at 19). It claims that this will lead to anomalous results because the Commission has already decided that Mr.
Wallace cannot be cleared without'a hearing. (Id.).
Regardless of who was expected to assume the burden of going forward and persuasion, the fact remains that the Com-mission was not able to reach a final decision on this matter and provided an opportunity for those interested in advocating a position against Mr. Wallace to make their case. No one chose to do so.
The Commonwealth raises two arguments in response. It claims first that Mr. Wallace as "the proponent of a Commission decision...should be required to present evidence supporting his position, even in the absence of an opponent to his posi-tion" (Com. Br. at 12). The Commonwealth's argument overlooks the nature of the proceeding against Mr. Wallace. Mr. Wallace requested an opportunity to clear his name after the NRC took
actions which reflected adversely on him and amounted to the imposition of a sanction. The proponent of an agency sanction must assume the burden of proof, not the individual against whom the action is taken and who has requested a hearing to clear his name. Cf 10 C.F.R. 52.732 (proponent of order has burden of proof); Reich Geo-Physical, Inc., ALJ-85-1, 22 NRC 941, 947 (1985) (Staff bears burden of proof when licensee requests hearing to contest order imposing civil penalty).
The Commonwealth also argues that the Staff should have advocated a position against Mr. Wallace.5 In support of this argument it claims that the Staff has acknowledged that additional evidence "might exist" and.that the " current evi-dence could lead a reasonable person to conclude that Mr.
Wallace knowingly, willfully, or recklessly made a material i
false statement" (Com. Br. at 11).
[
The Commonwealth mischaracterizes the Staff position.
To say that additional evidence "might exist" is not to say that additional evidence does exist. Moreover, it is not even clear that the Staff believes such additional evidence "might exist". The Staff identified a number of reasons why an adju-l l
dicatory hearing may be useful; none of them was to develop additional evidence.
l 5 To the extent that the Commonwealth maintains the Com-mission required to the Staff to do so, the Commonwealth is incorrect. Moreover, the Licensing Board and this Appeal Board lack jurisdiction to require the Staff to do so. See Section III.A, supra.
1
(A]n adjudicatory hearing, in which members of the public may attend and participate, if apppropriate, may bring to bear a different perspective on the issues. Importantly, a hearing may also serve to increase public confidence in the result reached...
On the other hand, the Staff, in consultation with the Office of Investigations, has reached the conclusion that the acency has acquired the information that is available such that it is unlikely that further investication would produce significant additional information. It has been over six years since the events in question transpired. The agency has expended considerable time and resources in investigating this matter, and a hearing would likely involve the expenditure of considerable (sic) more agency resources. At the end oof such a hearing, the final result may well be no different than that already reached by the Staff.
NRC Staff Comments In Response to CLI-85-19 at 15 (emphasis added).
Similarly, to state that "a reasonable person (could]
conclude that Mr. Wallace knowingly, willfully, or recklessly l
i made a material false statement" (Com Br. at 11) is not to l
state that he in fact did so. If anything, the Staff reached the opposite conclusion. It recognized "that the evidence falls short of that necessary to conclude that...Mr. Wallace l acted willfully or reckless 1v" (NRC Staff Comments in Response l
to CLI-85-19 at 15) (emphasis added).
l 1
1 l
Thus, the Commonwealth's argument ultimately reduces I to the claim that the Staff may not " weigh the evidence" or "act as judge in this proceeding" (Com. Br. at 14). The Con-monwealth apparently believes that the Staff must prosecute what amounts to an enforcement action against Mr. Wallace regardless of whether it believes the evidence would support the imposition of a sanction. It is ironic that the Commonwealth - a governmental entity - would advance such~a position because whether the government elects to commence an enforcement action is a matter of discretion and generally not subject to judicial review. Heckler v. Chaney, 470 U.S. 821 (1985) (decision of FDA not to take enforcement action subject to presumption of unreviewability and presumption was not overcome).
The Commonwealth would deny the Staff this discretion.
The Commission allowed its Staff to determine whether it should advocate a position against Mr. Wallace and, based on its eva-luation of the facts, the Staff chose not to do so. Clearly there was nothing improper in doing so. Therefore, the Common-l wealth's arguments to the contrary should be rejected.
i l
l l
l O
IV. Conclusion l
l In properly terminating this proceeding and removing 1 the notification requirement imposed in CLI-85-2 as to Mr.
Wallace, the Licensing Board acted in a manner consistent with its instructions from the Commission and with the rights of the Commonwealth.
The Commission, cognizant of its dual responsibility for ensuring the health and safety of the public and safe-guarding the rights of individuals involved in its regulatory activities, establiched the Licensing Board proceeding and fashioned guidelines intended to achieve those objectives. The Commonwealth was afforded an opportunity to intervene below and present a litigable contention and to exercise the full panoply of discovery devices available under the Rules of Practice of the NRC. Eschewing that course of action, the Commonwealth has instead filed this meritless appeal, in which the Commonwealth reiterates charges attributed to others which it is unprepared to substantiate. Rather than confront Mr. Wallace with fact and substance, the Commonwealth relies on allegation and innuendo. While the great Commonwealth of Pennsylvania may choose to expend its resources in such pursuits, Mr. Wallace still has a living to make and a family to support.
The terms of the Commission's Advisory Opinion and Order, as well as the application of fundamental fairness to
1 Mr. Wallace, warrant denial of the appeal and upholding of the decision of the Licensing Board.
GREENBAUM, ROWE, SMITH, RAVIN, DAVIS & BERGSTEIN l Attorneys for Respondent Edward W 1 ace By:
ichae h . Himmel *.
DATED: September /f , 1986 l 1
4 DCL KE TU UiNFF UNITED STATES OF AMERICA NUCLEAR REGULATORY. COMMISSION GFFICE C v. : '
.r 00CKETm a P. acl.
) BRAN'"
In the Matter of )
EDWARD WALLACE f Docket No. 50-289 EW
)
(GPU Nuclear, Three Mile Island Nuclear Station,)
Unit No. 1) )
CERTIFICATE OF SERVICE I hereby certify that copies of "Brief of Edward Wallace in opposition to Appeal" have been served on the following by deposit in the United States mail, first class, this 19th day of September, 1986:
Ivan W. Smith Henry D. Hukill Administrative Law Judge Vice President E. Director,TMI-l 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 Bernabei, Esq.
Reynolds General Counsel 1200 17th Street, NW, Suite 700 Government Accountability Project Washington, DC 20036 1555: Connecticut Ave. , NW Washington, DC 20036 l
Michael W. Maupin, Esq.
l Ellyn R. Weiss, Esq.
Hunton & Williams i
P. O. Box 1535 Harmon & Weiss Richmond, VA 23212 2001 S Street, NW l
Washington, DC 20009 l
Ernest L. Blake, Jr. Esq.
Shaw, Pittman, Potts & Trowbridge Michael F. McBride, Esq.
1800 M Street, NW LeBoeuf,, Lamb, Leiby & MacRae Washington, DC 20036 1333 New Hampshire Ave., NW Washington, DC 20036 Susquehanna Valley Alliance P. O. Box 1012 Lancaster, PA 17604
~
c i
r 7
Docketing & Service Section (3)
- ,J. R. Thorper Office of the Secretary Director'of Licensing GPU Nuclear Corporation U.S. Nuclear Regulatory 100 Interpace Parkway Commission Washington, DC 20555 Parsippany, NJ 07054 Thomas Y. Au, Esq. Marjorie M. Aamodt Committee on Health Aspects and Assistant Counsel Nuclear Power Department of Environmental Resources Box 652 Lake Placid, NY 12946 P. O. Box 2357 Harrisburg, PA 17120 Louise Bradford Joanne Doroshow, Esq. Three Mile Island Alert The Christic Institute 1011 Green Street '
1324 North Capitol St., NW Harrisburg, PA 17102 Washington, DC 20002 Three Mile Island Alert Mary E. Wagner, Esq. 315 Peffer Street Counsel for NRC Staff Harrisburg, PA 17102 U.S. Nuclear Regulatory Commission Washington, DC 20555 e i
' g Jack R. Goldberg c
Acting Deputy Assistant & . _
Al in Le15 man
-s General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555 l
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.