ML20128H322

Response Opposing TMI Alert 850517 Request to Stay Anticipated Order Authorizing Restart.Reasons for Opposition Described.Hd Hukill & Jg Graham Affidavits Opposing Request Encl

ML20128H322
Person / Time
Site:	Three Mile Island
Issue date:	05/24/1985
From:	Blake E GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	NRC COMMISSION (OCM)
Shared Package
ML20128H326	List: ML20128H322 ML20128H336 ML20128H350
References
CON-#285-138 SP, NUDOCS 8505300492
Download: ML20128H322 (10)

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May 24, 1985 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION 00CKETED USNRC in the Matter of )

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METFOPOLITAN EDISON COMPANY )

15 SP Docket No. 50-289 MY 24 P4:54

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(Three Mile Island Nuclear ) CFflCE OF SECRt'IAFa Station, Unit. No. 1) ) 00CHEiy ERVICf.

LICENSEE'S OPPOSITION TO TMIA STAY REQUEST On May 17, 1985, intervenor Three Mile Island Alert ("TMIA")

filed with the Commission a request to stay an anticipated oi-der authorizing restart of Three Mile Island, Unit No. 1 ("TMI-1").1/

TMIA seeks a stay pending full resolution of all court of appeals reviews, or, in the alternative, for two weeks to seek an emergency stay from the reviewing court (TMIA Request at 2). For the reasons described below, and in the attached affidavits of Henry D.

Hukill, Jr. and John G. Graham, Licensee opposes the TMIA request as unnecessary and without adequate support in law or fact.2/

1/ The TMIA stay request is anticipatory, since the Commission has not yet issued any order authorizing restart of TMI-1.

Nonetheless, Licensee does not oppose the request as prema- -

ture. Licensee urges the Commission to resolve the stay issue as part of its decision on restart authorization. This will permit an orderly appeal process and will provide the re-viewing court.with the Commission's considered opinion on the merits of any stay request that may later be presented to the court.

2/ TMIA cites the stay granted by the Commission to the San Luis Obispo Mothers for Peace in the Diablo Canyon proceeding as (Continued next Page) 8505300492 850524 PDR C ADOCK 05000289 PDR

,n y-TMIA Has Failed To Make The Necessary Strong Showing That It Is Likely To Prevail On The Merits TMIA puts forth four reasons why it is.likely to succeed on the merits of an appeal: (1) that the hearing on management issues is not complete; (2)~that full Section 189(a) hearings must be held on all. issues since the restart order necessarily involves the is-suance of license amendments; (3) that Chairman Ivan Smith's al- l leged bias invalidates the six years of adjudicatory hearings held in this case; and (4) that in various unspecified ways, TMIA's hearing rights under the Atomic Energy Act, Administrative Proce-dure Act and Constitution have been violated (TMIA Request at 2-6).

This laundry list of procedural. complaints, none of which is fully specified or explained, raises issues with which the Commission has previously dealt'on numerous occasions. Such complaints fall far short of the required strong showing necessary to justify issuance of a stay.

1. TMIA's claim that the management hearings are incomplete (TMIA Request at 2-4) is based on a substantial distortion of three (Continued) next Page) precedent for the requested stay (TMIA Request at 1-2, n.1).

However, in Diablo Canyon the utility applicant did not oppose the intervenor's stay application. Here, by contrast, Licens-ee believes that neither the equities of this case nor the procedural posture of the proceeding necessitates issuing a stay. More relevant to the present stay request, and provid-

'ing more appropriate precedent, are the Commission decisions in both the Waterford and Catawba proceedings to deny interve-nor requests for stays pending judicial review.

O key points. First, TMIA ignores the extensive adjudic~atory record compiled, including lengthy decisions by the Licensing and Appeal Boards, which deal exclusively with management issues. Second, TMIA simply misreads the Licensing Board's May 3, 1985 decision on licensed operator training (TMIA Request at 3, n.2). The Licensing Board held that, for Licensee to demonstrate " reasonable progress" in this area, Licensee needed to begin immediately to develop a plan for on-the-job evaluations. This ruling is consistent with the Commission's original delegation to the Licensing Board to es-tablish the standards for measuring " reasonable progress," while leaving to the Staff the responsibility to determine whether the standards have been satisfied. Licensee has begun the work to develop the required plan (see Public Hearing Tr. at 109 (May 22, 1985)), and expects a favorable NRC Staff certification. Third, TMIA's claim that a favorable finding must be made on the "Dieckamp Mailgram"-issue prior to restart ignores the Commission's earlier ruling that the hearing on this issue was held merely as a matter of discretion, based primarily on public policy considerations.

See CLI-85-2, at pp. 8-9 (February 25, 1985). Thus, there is no requirement that a decision on the mailgram be issued prior to restart.

2. TMIA's argument that, since license amendments will be part of the restart decision, hearings on those amendments must first be held (TMIA Request at 4-5), also is premised on misconcep-tions about the restart hearing process. The license amendments imposed on Licensee resulted from the hearing process. Apparently, d

. r TMIA's argument'is that, notwithstanding the past six~ years of pro-  !

l caedings,-which form the basis for the license amendments, TMIA is l

entitled now to still further hearings on the license amendments t

which have:resulted to date. This envisions a continuum of'infi-nite proceedings. We know of no judicial support for this novel theory,;and certainly the cases cited by TMIA do not support such a

" Catch-22" approach to the Commission's hearing obligations.

The. court of appeals in Bellotti v. NRC, 725 F.2d 1380, 1383 (D.C. Cir. 1983), held that where the Commission imposes additional license conditions to make a plant's operation safer, as is clearly the case here, there is no automatic right to participate or demand hearings under Section 189(a). Rather, only if the Commission pro-poses to amend a license to remove a restriction upon the licensee does Section 189(a) require public participation. Id. Cf. 10 C.F.R. $$ 50.90 .92 (1985) (Sholly Amendment regulations applicable

, only when a licensee applies for a license amendment).

3. TMIA's argument regarding the bias of Chairman Smith (TMIA Request at 5) merits little comment. Suffice it to say that, in carefully reasoned opinions issued by Chairman Smith (see Memo-randum'and Order Denying Motions to Disqualify (February 20, 1985))

and the Commission (see Memorandum and Order, CLI-85-05 (April 5, 1985)), the matter was fully considered and no basis for bias or-disqualification was found. TMIA in its stay request adds nothing

. to the issue, merely referring the Commission to its earlier fil-ings. In such circumstances there is little likelihood that TMIA l

will prevail in the courts on this issue.

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4. TMIA's last claim, consisting of a single sentence alleg-ing unidentified and unspecified procedural violations (TMIA Re-quest at 5-6), is similarly unconvincing. The claim assumes, with-out further analyais, that TMIA is entitled to an on-the-record adjudication before the Commission lifts its immediately effective shutdown order. This is untrue. In San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1314 (D.C. Cir. 1984), the court held:

Because none of the actions specified in section 189(a) may be said to include the lifting of a license suspension, we conclude that such action does not give rise to the right to a hearing.

See also Philadelphia Newspapers, Inc. v. NRC, 727 F.2d 1195, 1197-99 (D.C. Cir. 1984) (lifting of immediate effective shutdown order is " informal" agency action).

In short, it is highly unlikely that TMIA will prevail in court on any of its procedural claims, and certainly no strong showing of success meriting a stay pending appeal has been demon-strated.

TMIA Has Made No Showing of Injury, Let Alone Irreparable Injury TMIA's claim of irreparable injury includes no allegation of unsafe equipment or design, no allegation of inadequate operational procedures or practices, and no allegation of untrained operators.

Instead, TMIA strings together a list of allegations which, in its view, establish a " shocking history" of character failings (TMIA Request at 6-7), and, on the basis of this list, speculates that the Commission's failure to order full-scale adjudicatory hearings 9

on these issues provides "no assurance that GPUN can be entrusted

. with [TMI-1] operation" (id. at 7).3/

This claim ignores the careful consideration that the Commis-

-sion already has given to the specific issues raised by TMIA.4/

In the face of this extensive review, the claim that irreparable injury results from the failure to grant a full adjudicatory hear-ing on such allegations is mere speculation. There is no basis to assume that a hearing on these matters would disclose significant factual material contradicting both the Staff's and Commission's 3/ Almost as an afterthought, TMIA claims that the Commission's violation of-important, but totally unidentified, procedural and constitutional rights constitute irreparable injury per se (TMIA Request at 7 & n.8). None of the cited cases involves claims that the mere denial of hearings on certain particular

~ issues.by a lawfully constituted administrative agency war- .

rants the issuance of a stay order. If that were the rule, then all Commission action might be stayed in the face of an intervenor's claim that it had been denied a Section 189(a) hearing. The cases cited by TMIA involve district court reso-lution of civil rights claims, allegations of unconstitutional statutes, and the like. Certainly, TMIA's unstated "impor-tant"Eprocedural and constitutional rights do not rise to a similar level of significance.

4/ In each case the NRC Staff carefully investigated the identi-fied allegations, either confirmed or refuted the claim, and evaluated the impact of the claim _on GPUN's ability to safely and reliably operate TMI-1. See, e.g., NUREG-0680, Supplement No. 5, "An Evaluation of the Licensee's Management Integrity as it Affects Restart of Three Mile Island Nuclear Station Unit 1, Docket 50-289" (July 1984). In no case did the NRC Staff find any basis for concluding that the allegation did, in fact, impair GPUN's ability to operate TMI-1. In its Pebruary 25, 1985 Memorandum and Order, the Commission exhaus-tively reviewed the NRC Staff investigations and analysis, considered the positions of the parties on the issues (includ-ing TMIA), and determined for itself that none of the identi-fied issues raised concerns about GPUN's ability to operate TMI-l which required an adjudicatory hearing prior to restart.

See CLI-85-2.

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conclusiunt. In/such circumstances, no showing of irreparable in-jury is made'and a stay should not issue.5/

Equally significant, TMIA overstates the immediate impacts from la Commission order authorizing restart. As the attached Hukill Affidav'it makes clear, it will be a minimum of 99 days after the Commission order before TMI-1 will begin sustained full power operation (Hukill Aff. at 11 6-7). Indeed, not until the sixth day

~after a Commission restart order does Licensee intend to take TMI-1 critical'(id. at 1 7(a)). A full 10 days will elapse before the plant even reaches and passes through the 5% power level (id. at l 1 7(a)-(c)). If TMIA is concerned about having sufficient time to petition and persuade an appellate court that a stay is warranted, Licensee's carefully controlled and deliberate startup program pro-i vides an adequate opportunity -- either during the five-day final non-nuclear heatup and surveillance testing-period or the ten days before ascension above 3% power.

Furthermore, the extended period of TMI-1 shutdown, and the gradual escalation to full power operation, ensure that the fission 5/- See, e.g., Massachusetts Coalition of Citizens v. Civil Defense Agency, 649 F.2d 71, 75 (1st Cir. 1981) ("merely rais--

ing the specter of a nuclear accident" is inadequate to demon-strate "immediate irreparable injury"); Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 359 (3d Cir.

1980) ("more than.the risk of irreparable harm must be demon-strated. The requisite for injunctive relief has been charac-terized as a ' clear showing of immediate irreparable injury',

or a ' presently existing actual. threat'" (citations omitted));

Standard' Brands, Inc. v. Zumpe, 264 F. Supp. 254, 267-68 (E.D.

La. 1967) 1" injunctions will not be issued merely to allay the fears and apprehensions or to soothe the anxieties of the par-ties").

f*

product inventory of the plant and the decay heat to be removed in

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the event.of an accident are small fractions of the levels associ-ated with long-term, full-power operation (Hukill Aff. at 1 10).

- Thus, in the unlikely event of an accident, potential radioactive releases from TMI-1 will be substantially less than for plants operating at full power (id.). Similarly, unanticipated events

.will place less stress on emergency equipment, provide plant opera-tors with a longer period of time to respond, and generally be sub-

. ject to greater safety margins than is the case for plants operat-ing at full power (id.). All of this means that the risk to the i

public health and safety during the TMI-1 restart test program is i

.substantially less than the-Commission accepts when it authorizes full. power operation of other nuclear power plants.s/

By every measure, the TMIA stay request fails to demonstrate irreparable injury.

Granting A Stay Will ' Injure And Harm Licensee TMIA's views on~the harm to Licensee from a stay are somewhat i

difficult to comprehend (TMIA Request ct 8). Apparently, TMIA ar-gues that Licensee would not be harmed by a stay because "TMI-l's fpower ascension will be very gradual" (id.). If TMIA means what it I

says, it is not seeking a stay which will preclude Licensee from f/ We also would observe that in this case there can be no claim '

that restart authorization will irreparably contaminate an otherwise clean plant. Thus, from a judicial perspective, an c incorrect decision authorizing restart is more easily revers-ible and reparable than in a case where the Commission issues a new license.

'k initiating and completing its restart test and power ascension pro-gram. Accordingly, there is no need for a Commission stay at this

-time; it is possible under expedited procedures to have briefed and argued the merits of any TMIA appeal to the court within 99 days.

If no decision had yet issued, TMIA could at that time petition the court for a stay.

However, if TMIA seeks to enjoin the start of Licensee's restart test program, then there assuredly will be significant harm

-to Licensee. The Hukill Affidavit demonstrates that Licensee is ready to begin its restart test program now (Hukill Aff, at 1 5),

that the program consists of a controlled and detailed set of se-quential steps which must be performed in order (id. .at 11.6-7),

and that any delay in beginning the program will result in a day-for-day delay in completing the program and starting sustained full-power operation (id. at 11 8-9).

The Graham Affidavit demonstrates that, for each month's delay in returning TMI-1 to operation, Licensee's ratepayers will incur-increased costs of about $6.7 million (Graham Aff. at 1 6), that Licensee's nonresidential customers will continue to suffer under

, competitive disadvantages in both national and international mar-kets (id. at 1 7), and that GPU common stockholders will be injured due to an approximately $5 million reduction in earnings (id. at 1 8). In addition, the TMI-1 owners' ability to fund additional, excess advances to TMI-2 cleanup activities will be impaired (id.

at 1 9). By any measure these are direct and substantial injuries that would result from issuance of a stay.

i' The Public Interest Lies In An End To Administrative Proceedings That Are Complete r.

The TMI-1 restart _ proceeding has dragged on beyond the expec-tations of'everyone, and certainly beyond the Commission's expecta-tions in 1979. The record is voluminous; the written opinions and orders are lengthy; the issues have been analyzed in painstaking detail. Once.the Commission has assured itself that the public health and safety will'be protected, there is a substantial public

-interest in concluding the proceeding and allowing operation of TMI-1. Granting a stay at this point would only further protract the proceedings with no public benefit. This is especially true here since Licensee's gradual power ascension program provides TMIA with adequate time to seek a stay from the reviewing court. In

.short, there is no need for the Commission to stay its own order lifting the immediately~ effective shutdown order.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE-2;.4 f. w4 Ernest L. Blake, Jr.

Robert E. Zahler

1800 M Street, N.W.

Washington, D.C. 20036 Counsel for Licensee 4

Dated: May 24, 1985