ML20127G270

Motion for Stay of NRC 850529 Order Authorizing Restart of TMI-1.W/o Exam & Hearing on Gpu Current Mgt Integrity, Residents Living Near Plant Have No Assurance Util Can Be Entrusted W/Operation.Certificate of Svc Encl

ML20127G270
Person / Time
Site:	Three Mile Island
Issue date:	05/17/1985
From:	Doroshow J, Shobet G, Shohet G CHRISTIC INSTITUTE, GOVERNMENT ACCOUNTABILITY PROJECT, THREE MILE ISLAND ALERT
To:	NRC COMMISSION (OCM)
References
CON-#285-064, CON-#285-64 SP, NUDOCS 8505210022
Download: ML20127G270 (12)

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W .5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

&& BEFORE THE COMMISSION 00CKETED USNP.C In the Matter of )

METROPOLITAN EDISON COMPANY ) Docket No. 50-289-SP

)

(Three-Mile Island Nuclear ) 0FFICE CF SECRETARY

-Station, Unit No. 1) ) DOCKET igyERVK1 THREE MILE ISLAND ALERT'S MOTION FOR STAY OF COMMISSION ORDER AUTHORIZING RESTART OF THREE MILE ISLAND, UNIT 1 Three Mile Island Alert ("TMIA"), pursuant to 10 CFR 2.788, moves the Nuclear Regulatory Commission ("NRC" or " Commission") to stay its order of May 29, 1985, which will authorize the restart of Three Mile 1

Island, Unit 1.

1 Although theoretically the Commission could vote against restart of TMI-l on May 29, it is clear from the votes of at least three Commis-sioners on prior issues that the majority of the present commission will. vote to lift the suspension of the license held by General Public

' Utilities Nuclear-("GPUN"). The Commission's decision to hold no further hearings on licensee management integrity is based on a deter-

, mination of_these three Commissioners that the information available to them indicates that GPUN has the management capabilities, including integrity, to operate TMI-l safely.

Moreover, on May 8, 1985, the Commission indicated that it viewed its vote on May 29 as a decision on the "immediate effectiveness" of its suspension of GPUN's license.- There would be no need for a vote at this time on that issue if the Commission intende'd'to mainta'i'n the

" status quo," that is, maintain the suspension of GPUN's license to operate TMI-l.

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. TMIA requests a ruling on its motion for a stay at this time in order.to decide whether to pursue appeal of this Commission decision.

Chairman Palladino has. indicated on at least one prior occasion that the Commission would grant the parties a short stay permitting them' time to seek court review, after.a Commission decision on restart.

-The Commission granted intervenor San Luis Obispo Mothers for Peace a seven-day stay to give them the opportunity to determine

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FOOTNOTE CONTINUED h

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TMIA requests a stay of the Commission's order authorizing restart

.pending Court of Appeals review on the merits of TMIA's and other par-ties' appeels'of that order. If the Commission denies this request, TMIA moves, in the alternative, for a stay of the Commission's order for two weeks, allowing TMIA to seek an emergency stay from the court itself of the Commission's order.

I. TMIA SATISFIES THE STANDARD FOR GRANT OF A STAY The Commission's regulations provide that it should consider the following factors in determining whether to grant an application for a stay:

(1) . Whether the' moving party has made a strong showing that it is likely to prevail on the merits; (2) Whether the party will be irreparably injured unless a stay in granted; (3) Whether the granting of a ' stay would harm other parties; and (4) Where the public interest lies.

10 CFR 2.788(e).

Weighing these factors in this case must lead the commission to grant TMIA's request for a stay of its order pending court review on the merits of its decision.

A. There l's a Strong Likelihood That TMIA Will Prevail i

.on the Merits There is a strong. likelihood that TMIA, and.the other parties who L can be expected to appeal the Commission's restart order, will prevail on the merits of their claim that the Commission's order is illegal.

l First, the Commission's order must nec'e'ssarily be based on less than a full adjudicatory record, since the Atomic Safety and Licensing i FOOTNOTE 1 CONTINUED whether to pursue judicial review. Pacific Gas and Electric'Co.

(Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-84-5, 19 NRC 953 (1984).

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Board (" Licensing Board") empowered to make a preliminary decision on management capability issues has yet to issue favorable decisions on two issues: the adequacy of the operator training program and the 2

"Dieckamp Mailgram" issue.

However, the Commission cannot legally permit restart other than on the basis of favorable Licensing Board decisions on management competence and integrity for two reasons:-

(1) Its August 9, 1979 order which set up hearings promised that it would not authorize restart on any basis other than after the

' hearings had'been held and decisions favorable to GPUN had been ren-dered, CLI-79-8, 10 NRC 141, 142, 146 (1979);

(2) TMIA and other intervenors have a right to a hearing under the Atomic Energy Act on all license amendments, 42 U.S.C. 2239(a).

2 On May 3, 1985, the Licensing Board issued a decision which found the TMI training program generally adequate, but deficient in not provid-ing for any formal evaluation of trained operators in the job setting.

It' ordered that GPUN provide it with an implementation plan for eva-luation and'that it approve the plan after receiving comments of the other' parties. PartiaI* Initial Decision, LBP , 21 NRC (1985), slip. of._at 155, 216-217.

Moreover, the Licensing Board determined that this license con-dition was a "long-term" action. Under the terms of the Commission's August 9, 1979 order which set up the hearings on TMI-1. restart, it directed the Licensing Board to make a finding that the company had made " reasonable progress" in completing the long-term actions-described in the order. CLI-79-8, 10 NRC 141 (1979). It is clear that the Licensing Board will not have the complete filings'if the parties, but less be able to make such a " reasonable progress" finding by May 29. Therefore, the Licensing Board will not have rendered a -

favorable decision to licensee on the training issue by the time the Commission votes to authorize restart. -

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The Licensing Board has rendered no decision on the "Dieckamp Mailgram" issue, and it is clear that the Commission has not indicated that it will condition its May 29 vote on receipt of such a Licensing Board opinion favorable to licensee. Thus, the Commission will not predicate its restart order on a favorable Licensing Board decision on this issue.

I Both-GPUN and the NRC Staff have argued in the restart proceed-ings that the Commission may lift the immediate effectiveness of its suspensiogg of GPUN's license to operate THI-1 prior to completion of 3

the hearings. The Commission appears in its May 8 order to have accepted this rationale to support its restart vote prior to comple-

~ tion of the restart hearings.

This-is clearly in violation of the Commission's August 9, 1979 order which set up, at a minimum, discretionary hearings on, inter alia, GPUN management capabilities, including integrity. Once the

' Commission set up these hearings and permitted TMIA and other parties to participate in the hearings over the last six years, it was obliged to.make its restart decision as promised, on the' basis of this adjudi-catory. record. See generally Minneapolis Gas Co. v. Federal Power Commission, 294 F.2d 212 (D.C. Cir. 1961) in which the court held that once an agency had initiated a discretionary hearing to determine the fairness of a rate, completed an evidentiary hearing and an initial decision and held argument on the appeal, it could not terminate the proceeding without issuing a decision on the merits of the case; Brandenfels v. Day, 316 F.2d 375 (D.C. Cir. 1963), cert. denied, 375 4

' U.S. 824 (1963);

Second, it is clear that the Commission is required under the Atomic Energy Act to hold a hearing on any licens'e' amendment When an 3

See, e.g., Licensee's Comments in Response,to the Commission's Order of June 1, 1984 (July 26,-1984); Licensee's. Reply to UCS Comments on TMI-1 Restart (August 10, 1984); and NRC Staff's Comments on the Commission's Order of June 1, 1984 (July 26, 1984), at 12-13, n. 6.

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See also Marine Engineers' Beneficial Ass'n v. NLRB,-202 F.2d 546 (3rd Cir. 1953), cert, denied, 346 U.S. 819 (1953); Leeds and Northrup Co. v. NLRB, 357 F.2d 527 (3rd Cir. 1966); Terminal Freight Coopera-tive Ass'n v. NLRB, 447 F.2d 1099 (3rd Cir. 1971), cert. denied, 409 U.S.-1063 (1972).

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affected party requests it. San Luis obispo Mothers for Peace v. Nuclear Regulatory Commission, 751 F.2d 1288 (D.C. Cir. 1984);

Shelly v.4U.S.~ Nuclear Regulatory Commission, 651 F.2d 781, (D.C. Cir. 1 (per curiam), vacated on other grounds, 103 S.Ct. 1170 (1983); Brooks

v. Atomic Energy ~ Commission, 476 F.2d 924, 927-(D.C. Cir. 1973) (per curiam). Since the Commission cannot authorize restart of TMI-1 without granting GPUN certain license amendments, the Commission can-

-authorize restart only after ensuring TMIA and other parties.their 5

section'189(a) hearing rights. Therefore, the Commission may not

. authorize restart of TMI-1 other than on the basis of decisions from the Licensing' Board' favorable to the licensee.

Third, as argued at length in the parties' recent motions to

. remove Judge Ivan W. Smith, Chairman of the Licensing Board since the inception of th'e TMI-1 restart proceedings, these proceedings have been infected with such-judicial bias that they must be invalidated. TMIA refers the Commission generally to its Appeal of Judge Ivan W. Smith's

, order Denying Motions to Disqualify Him (March 6, 1985). Since the F hearings were infected with judicial bias, they violated TMIA's section 189(a) right to a fair'and impartial hearing, its right to a fair and i

" discretionary" hearing promised in the Commission's August 9, 1979 I

order, and its constitutional due process rights.

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Finally,ETMIA contends that the commission's conduct of these hearings, in which relevant information TMIA sought to introduce was l excluded, and the Commission's restart decision, based on other than record evidence, violate its section 189(a) hearing rights,"its righ.ts l 5 j

p The license amendments include conditions regarding the management capabilities of GPUN.

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to a fair and on-the-record adjudication under the Administrative 6

Procedure Act ("APA"), 5 U.S.C. 554, 556, 557 (1976) , and its consti-tutional due process rights.

TMIA believes that it has made, through its filings with the.

Commission, and its presentations before the Licensing Board and the Atomic Safety and Licensing' Appeal Board, to which the Commission has delegated responsibilities in the restart proceeding, a showing that it'is likely that it will prevail on the merits of these claims in court.

B. TMIA Members Who Reside in the Immediate Vicinity of

.TMI-1 Will Be Irreparably Injured by the Commission's Authorization of Restart Prior to Adequate Resolution of Important Safety Concerns The Commission proposes to authorize restart of TMI-l prior to a full resolution of the technical and integrity concerns raised by the Commission in its original August 9, 1979 order and additional ones emerging during the six years since the TMI-2 accident. This will jeopardize ~the health a,nd safety of the residents of central Pennsylvania. In a shocking history of character failings over the last six years, GPUN has shown perhaps the least " integrity" of any NRC licensee. These failings include the company's indictment and L

subsequent plea of guilty to one count and no contest to six other

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i. charges of falsification of leak rate data; widespread operator and i:

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supervisor cheating on examinations; management cover-up of cheating e

by the Unit 2 Supervisor of operations on his license requalification-exam and false certification of his completion of license re@uirements i

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Courts have consistently stated that section 189(a) hearings are l adjudications' subject to sections 554, 556 and 557 of the APA. Porter F

FOOTNOTE CONTINUED

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7 to the NRC; an incomplete, inaccurate and dishonest company response to the NRC's citation for the accident; the company management's failure torprevent or remedy harassment of clean-up workers who dis-closed deliberate circumvention of safety procedures; management's failure to disclose reports to the NRC which were critical of manage-ment; and the company's alteration of its internal report on the accident for improper motives. Despite this evidence, the Commission improperly eliminated hearings on all these subjects, including falsi-fication of leak rate tests at Unit 2 and violation of leak rate testing procedures, if not falsification, at Unit 1, on which the Appeal Board ordered hearings. CLI-85-2. (Feb. 25, 1985). Without an examination and hearing on GPUN's current management integrity in light of serious, and in some cases criminal, misconduct, those who live near TMI-l have no assurance that GPUN can be entrusted with its operation. The information which has come to light since the accident reinforces the Commission's opinion in its August 9, 1979 order that there is no assurance the company has the competence and character to operate TMI-1 so as not to endanger the public's health and safety.

Moreover, in permitting restart of TMI-1, the Commission violates important procedural and constitutional rights of TMIA. Such viola-8 tion constitutes irreparable harm per se.

FOOTNOTE 6 CONTINUED County Chapter, Izaak Walton League v. AEC, 533 F.2d 1011, 1019 (7th Cir.), cert. denied, 429 U.S. 945 (1976) ; Citizens for a Safe Environ-pent v. AEC, 489 F.2d 1018, 1021 (3rd Cir. 1974) ; Siegel v. AEC, 400 F.2d 778, 785 (D.C. Cir. 1968). **

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This former supervisor, James Floyd, was convicted of cheating in November, 1984. United States of America v. James R. Floyd, F.

Supp. (M.D. Fa. 1984).

8 United Church of the Medical Center v. Medical Center Comm., 689 F.2d 693 (7th Cir. 1982); Planned Parenthood of Minnesota, Inc. v. Citizens FOOTNOTE CONTINUED

Therefore, it'is clear th'at TMIA and its members will suffer-

' irreparable harm if Commission does not stay its decision at this

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' time.'

C. The granting of a Stay Will Not Harm the Other Parties in the Restart Proceeding The commission's grant of a stay pending court review on the merits will not harm the'other parties to this proceeding. The Com-

. mis'sion has no interest in the timing of. restart of TMI-1.

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Its only concern-should be protecting the safety of those who live near TMI-1.

GPUN will not suffer any harm from a stay of the Commission's decision pending court review. Any court review on the merits of this case could be expedited so that a decision could be expected within

.several months. ~GPUN will have to do extensive testing prior to ascension above five percent power. Moreover, because TMI-1 has remained shutdown for such a long period of time, the NRC Staff has indicated that it will be necessary for the utility to comply with additional NRC procedures prior to full power operation. Therefore, a small delay of several months, during early stages of power ascension will.not harm the utility, since TMI-l's power ascension will be very gradual.

FOOTNOTE 8 CONTINUED .. ..

l for Community Action, 558 F.2d 861 (8th Cir. 1977); Lewis v. Kugler, 446 F.2d 1343 (3d CIr.1971) ; Henry v. Greenville Airport Comm. , 284 F.2d 631 - (4th Cir. 1960) ; O'Connor v. Mowbray, 504 F. Supp. 139 (D.

Nev.' 1980); Lewis v. Delaware State College, 455 F. Supp. 239 (D. Del.

1978);'Publi_c Funds for Public Schools v. Marburger, 358 F. Supp. 29 (D.N.J. 1973), aff'd., 417 U.S. 961 (1974) ; Green v. Kennedy, 309 F.

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Supp.-1127 (D.D.C.), appeal dismissed, 398 U.S. 956 (1970) and 400 U,,S.

986 (1971). Cuomo v. NRC, Civ. No. 84-1264, slip op. at 7 (D.D.C.

j April 24, 1984).

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D. The Public Interest Lies in a Stay of Any Commission Restart Decision Pending Court Review The epublic's r

foremost interest is that GPUN be guaranteed to have the management capability, including integrity, to operate TMI-l safely. The residents of central Pennsylvania, who have already suf-fered one accident, the worst in the history of commercial nuclear power in this. country, should have every possible assurance of the quality of GPUN management and the safety of the plant. Instead, the Commission proposes to allow operation of THI-1 by a company with a demonstrated lack of character. This it does in the face of unre-solved. questions about the safety of the steam generators. There is no doubt that the public interest in this instance lies in_the Commis-9 sion's taking every precaution to ensure the safe operation of TMI-1.

Moreover, the Pennsylvania ratepayers will suffer no harm if TMI-1 is not permitted to operate. The GPU utilities which own TMI-1 have

. promised the Pennsylvania Public Utilities Commisison only that rates will not rise with the addition of TMI-1 to their rate base. There-fore, addition of TMI-l'to the utilities' rate base will not be of any

' benefit to Pennsylvania ratepayers.

II. CONCLUSION For the_ foregoing reasons, TMIA requests that the Commission l grant a stay of the Comnission's order authorizing restart of.TMI-1 pending full court review on the merits of the Commission's decision.

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• The Commonwealth of Pennsylvania has sought review in the United States Court of Appeals for the Third Circuit of the Commission deci-sion to cut off further management integrity hearings and requested that the court enjoin any Commission decision on restart prior to such hearings. Commonwealth of Pennsylvania v. U.S. Nuclear Regulatory Commission, No. 85-3239 (filed April 25, 1985).

FOOTNOTE CONTINUED i

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-In the alternative, TMIA requests the Commission grant a stay of two weeks to permit it the necessary time to seek an emergency stay from the U.S. Cpurt of Appeals.

Respectfully submitted, OW cw s u.) J24 9 oahne Doroshow 'W 1

hejchristicInstitute North Capitol Street Washington, D.C. 20002 /

(202) 797-8106 j$7 fj/

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i ynha-Batnaber George Shohet Government Accountability Project 1555 Connecticut Avenue, N.W.

Suite 202 Washington, D.C. 20036 (202) 232-8550 Attorneys for Petitioner Three Mile Island Alert, Inc.

DATED: May 17, 1985 FOCTNOTE 9 CONTINUED The Commonwealth is entitled to great deference when it states that in its opinion the Commission should not allow TMI-l to operate at this time. ..

U.S. Senators Arlen Spect5r and John Heinz, U.S. Representatives George Gekas and Robert Edgar, and state and local officials have -

called on the Commission not to permit restart prior to additional management integrity hearings. Their views on this matter should be viewed as expressing the interest of their constituents, the people who live in central Pennsylvania.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION c ,

ED BEf0RE Tile COMMISSION hN[RC

'In the. Hatter of ) E MY 20 20:03

)

^HETROPOLITAN EDISON COMPANY ) Docket No. 50-289 SP 0FFICE OF SECRETAF y

) 00CKETING & SERvlu'

.(Three Mile Island Nuclear -) BRANCH Station, Unit No. 1) )

)

I hereby certify that a copy of the foregoing Three Nile Island

Alert'd.Hotion for Stay of Commission Order Authorizing Restart of Three Nile Island, Unit 14 ~has been served on the following, by mailing a copy, first' class, postage prepaid on May 17,-1985.

Service List 0 Nunzio J. Palladino, Chairman

• Frederick Bernthal, Cormnissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Reg'ulatory Commission W3shington, D.C. 20555 Washington, D.C. 20555 0 Thomas H. Roberts, Commissioner

• Lando W. Zech, Jr., Commissioner

> U.S. Nuclear Regulatory Conunission U.S. Nucle'ar, Regula tory Corr, mission W3shington, D.C. 20555 Washington, D.C. 20555 A Jciaes.K. Asselstine, Commissioner Administrative Judge.

U.S. Nuclear Regulatory Coimnission Christine N. Kohl Washington, D.C. 20555 Atomic Safety & Licensing Appeal Board

U.S. Nuclear Regulatory Commission, Ad:ninistrative Judge Washing ton,' D.C. 20555 G3ry Edles, Chairman Atomic Safety & Licensing Appeal Administrative Judge Board U.S. Nuclear ' Regulatory Conunission John H. Buch ,

At mic Safaby & Li en81n9 Appeal Washington, D.C. 20555 Board U.S. Nuclear negulatory Commission Washington, D.C. 20555

-Administrative Judge Mr. Henry D. Hukill Ivan.W. Smith, Chairman- Vice President Atomic Safety &LLicensing Board . -GPU Nuclear Corporation LU.S. Nuclear: Regulatory Commission -P.O. Box 480

~Washingggn D.C. 20555 . Middletown, PA 17057 .

Administrative Judge TMI Alert Sheldon J. Wolfe . 315 Peffer Street Atomic Safety & Licensing Board Harrisburg, PA l'i102 U.S. Nuclear: Regulatory Commission Washington, D.C. 20555 Mr. and Mrs. Norman Aamodt R.D. 5 Administrative Judge Coatesville, PA 19320 Gustave A. Linenberger,~ Jr.

Atomic Safety & Licensing Board Ms. Louise Bradford U.S. Nuclear Regulatory Commission TMI Alert Washington, D.C. 20555 1011 Green Street Harrisburg, PA 17102 Joanne Doroshow, Esq.

Docketing and Service Station (3) The Christic Institute Office of the Secretary 1324 North Capitol Street U.S. Nuclear Regulatory Commission Washington, D.C. 20002

-Washington, D.C. 20555 Michael F. McBride, Esq.

Atomic-Safety & Licensing Appeal LeBoeuf, Lamb, Leiby & MacRae Board Panel 1333 New Hampshire Avenue N.W.

, U.S. Nuclear Regulatory Commission . Suite 1100 Washington, D.C. 20555 Washington, D.C. 20036

. Atomic Safety & Licensing Board Michael'W. Maupin, Esq.

Panel Hunton & Williams

-U.S. Nuclear. Regulatory Commission 707 East Main Street Washington, D.C. 20555 . P.O. Box 1535 Richmond, VA 23212'

'~

eA Jack R. Goldberg, Esq.

Office of the Executive Legal Ellyn R. Weiss, Esq.

Director William S. Jordan, III, Esq.

l "U.S.' Nuclear Regulatory Commission Ha'r mon, Weiss & Jordan

-Washington, D.C.-20555 2001 S Street N.W.

Suite 430

, Thomas Au, Esq. Washington, D.C. 20009 Office of Chief Counsel '

, Department of Environmental TMI-PIRC Legal Fund Resources 1037 Maclay 505 Executive House Harrisburg, PA 17103

.P.O.: Box'2357 Harrisburg, PA 17120 Jack Thorpe Manager of Licensing

• Ernest L. Blake,.Jr. General Public Utilities Shaw, Pittman, Potts & Trowbridge 100 Interpace Parkway 1800 M Street N.W. Parsippuny, NJ 07054 Washington, D.C. 20036

./ M '

Mne Bernabei

• ' Hand-delivered.

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