ML20090A835

Opposition to TMI Alert 840625 Motion to Lift Commission Stay of ALAB-738.No Valid Reasons Provided to Warrant Lifting of Stay.Certificate of Svc Encl

ML20090A835
Person / Time
Site:	Crane
Issue date:	07/10/1984
From:	Blake E METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	NRC COMMISSION (OCM)
References
ALAB-738, SP, NUDOCS 8407120133
Download: ML20090A835 (8)

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UNITED STATES OF AMERICA LIC 7/10/84 NUCLEAR REGULATORY COMMISSION gg BEFORE THE COMMISSION a## d%11 A0:14 In the Matter of

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Docket No. 50-289

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LICENSEE'S OPPOSITION TO TMIA MOTION TO LIFT THE COMMISSION'S STAY OF ALAB-738 On June 25, 1984, TMIA moved the Commission to lift the stay of ALAB-738 which the Commission imposed on October 7, 1983.

(TMIA Motion to Lift Stay on Reopened Hearings and Response to Licensee Request For Stay).

There is no basis whatsoever for now lifting that stay since the reasons for its imposition still exist and no significant events have occurred to change the ad-visability of staying the remand of Unit 2 leak rate issues.

. Chi August 31, 1983, in ALAB-738, the Atomic Safety and Licensing Appeal Board ordered the record on the management

- phase of this proceeding reopened and remanded to the Licensing Board for the purpose of exploring the so-called Hartman allega-tions concerning pre-accident leak rate testing practices at TMI-2.

18 N.R.C. 177 (1983).

This was ordered notwithstanding the staff's request to the Appeal Board to defer ruling pending the outcome of a separate inquiry into the same leak rate issues by the NRC Office of Investigations (OI).

Id. at 190.

On October 7, 1983, the Commission ordered that the remanded heering specified in NJG-738 be stayed.

The Commission did so "[t]o conserve agency resources and avoid duplication of ef fort",

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% recognizing that "[t]he Commission's Office of Investigations (OI) is now investigating the Hartman allegations."

TMIA suggests initially that the Commission's stay should be lifted because, given the fact that a related criminal case against Metropolitan Edison Company (Met-Ed) has been completed, i

individual operators should now be able to cooperate in NRC proceedings.

During the pendency of the Justice Department in-vestigation of the Hartman allegations and the resultant indict-ment of Met-Ed, individual operators, on advice of counsel, let it be known that they would assert Constitutional rights and privileges and would resist attempts to be interviewed.

Although it is certainly true that the criminal case against Met-Ed is now over and presumably individual operators may be more willing to cooperate and participate in OI interviews, the Commission's concerns of duplication and waste of agency resources sti31 exist as they did on October 7, 1982.

While an impediment to the OI. investigation is now lifted, that OI investigation which the Commission felt should precede any possible adjudicatory hearing has not been completed to Licensee's knowledge.

The completion of the criminal case may thus clear the way for an OI investigation but provides no basis for now lifting the stay of ALAB-738.

TMIA next suggests that OI has substantially completed its investigation of Unit 2 leak rate issues and that the Commission's stay should accordingly be lifted.

Licensee is unaware that GI is nearing completion of a full-blown investigation of Unit 2

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In fact, at the pre-hearing conference on Unit 1 leak rate practices held recently on June 28, 1984 (three days af ter TMIA filed the instant motion asserting that OI's investi-gation is "substantially completed"), TMIA's representative stated "there does not seem to be an adequate OI investigation in the works at this point (Transcript at 12,274).

TMIA appears to be arguing contrary facts to the Licensing Board and to the Commission.

As far as Licensee knows, no operators have been inter-viewed or deposed by OI on TMI-2 leak rate practices.

If TMIA is suggesting that the scope of the Unit 2 leak rate issue is properly limited to determining that no licensed operators poten-tially involved in allegations of leak rate irregularities at Unit 2 are currently licensed operators at Unit 1, Licensee would agree that that limited issue could now be disposed of.

However, if the proceeding is to encompass a broader scope, then OI's investigation into Unit 2 leak rate practices appears to be far from complete.

We cannot imagine a complete inquiry of TMI-2 leak rate practices without interviews of those involved.

There is no urgency--if there is a need at all in the context of Unit I restart--to explore further the Unit 2 practices.

It is important to bear in mind that ultimately it is leak rate practices at Unit 1, the facility to be restarted, which are critical.

OI has, of course, completed its investigation of Unit 1 leak rate practices and determined there was neither a systematic pattern of falsification nor a motive to falsify leak rate testing data at Unit 1.

Furthermore, none of the Unit 2

t operators who were involved in leak rate testing at that Unit are today involved in operating TMI-1.

No TMI-2 licensed operator will operate at TMI-l with the exception of Michael Ross, current TMI-l Operations Supervisor who was assigned to Unit 1 but licensed at both TMI-l and TMI-2 in the pre-accident period.

(See Letter of Herman Dieckamp, President, GPU Corp., to Chairman Nunzio J.

Palladino, NRC, June 10, 1983; Statement of GPU to the NRC, Ncvember 28, 1983).

With respect to Mr. Ross, the OI report on Unit 1 states that he is not " implicated" in any improprieties either at TMI-l or TMI-2.

Finally, the United States Attorney for the Middle District of Pennsylvania, David Dart Queen, stated at the time of the plea agreement announcement in the criminal case against Met-Ed that no director or officer of GPU Nuclear Corp. from the time of its organization to the present, ever

" participated in, directed, condoned or was aware of the acts or omissions that are the subject of the indictment."

(Transcript of plea proceedings in United States vs. Metropolitan Edison Corp.,

Criminal No. 83-00188, the United States District Court for the Middle District of Pennsylvania, February 28, 1984, at 16).

In sum, no individual involved in Unit 1 leak rate testing today has been implicated in any leak rate testing falsification -allegations

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at either TMI-l or TMI-2.

Finally, TMIA suggests that ALAB-738 is a final order of the Commission which must remain in effect and that the remanded hearing called for must still occur under any circumstances.

This position is unsound.

The Commission had forty days from the

5-Appeal Board's decision of August 31, 1983 to review ALAB-738.

10 CFR 52.786 (1983).

Within that time poriod, the Commission ordered that the decision be stayed.

The forty-day review period was thus tolled, and has not expired.

Accordingly, the Commis-sion may still review su,a; sponte the Appeal Board's decision and could well decide that there is no sense in continuing with an adjudicatory hearing on Unit 2 leak rate issues as part of the Unit 1 restart proceeding.

Thus TMIA's final argument, that ALAB-738 is a final Commission order that must eventually be dealt with, is aiso erroneous.

For the foregoing reasons, Licensee respectfully suggests that no valid reasons whatsoever hav;e been provided by TMIA which would warrant the Commission lifting its stay of ALAB-738.

The basis for that stay remains unchanged.

At a minimum, the Commis-sion should await the outcome of the OI report on Unit 2 leak rate practices before lif ting the stay.

And before lif ting the stay the Commission should ask itself whether adjudication of TMI-2 leak rate practices in the context of the Unit i restart hearing serves a useful purpose.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE IWl $. /hr r,Yi, Ernest L.

Blake, Jr.,

P.C.

I Dated:

July 10, 1984 e-.

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NUCLEAR REGULATORY COMMISSION

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In the Matter of

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Dcchet No. 50-289 METROPOLITAN EDISON COMPANY

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l CERTIFICATE OF SERVICE N

N I hereby certify that copies of " Licensee's Opposition to TMIA Motion to Lift the Commission's Stay of ALAB-738," dated '. s 's July 10, 1984, were served on those on the attached Service f

List by deposit in the United States mail, postacle prepaid this

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10th day of July, 1984.

Vu.s t'. dsJ.

Ernest L. Blake, Jr.,

P.C.

i DATED: July 10, 1984 t

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SERVICE LIST s

Nunzio J.

Pallhdino, Chairman Administrative Judge Nucl ar Regulatory Commission John H.

Buck U.S.

3 Washington; D.C.

20555 Atomic Safety & Licensing Appeal 3

Board Thomas M.

Roberts, Commissioner U.S. Nuclear Regulatory Commissi@

7 U.S. Nuclear Regulatory Commission Washington, D.C.

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20555 Administrative Judge

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James K4Asselstine, Commissioner Christine N. Kohl A

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20555 Board

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1. 9' Frederick Bernthal, Commissioner Washington, D.C.

20555 U.S. N,uclear Regulatory Commission Washington, D.C.

20555 Administrative Judge i

Ivan W.

Smith, Chairman Lando W. Zeck, Jr., Commissioner Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissi@

Washington, D.C.

20555 Washington, D.C.

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's Administrative Judge Administrative Judge

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} Atomic, Safety & Licensing Appeal Atomic Safety & Licensing Board i

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Gustave A. Linenberger, Jr.

Vice President Atomic Safety & Licensing Board GPU Nuclear Corporation U.S. Nuclear Regulatory Commission P.O. Box 480 Washington, D.C.

20555 Middletown, PA 17057 Docketing and Service Section (3)

Mr. and Mrs. Norman Aamodt Office of the Secretary R.D.

5 U.S. Nuclear Regulatory Commission Coatesville, INA 19320 Washington, D.C.

20555 Ms. Louise Bradford Atomic Safety & Licensing Board TMI ALERT Panel 1011 Green Street

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_- 'c U.S. Nuclear Regulatory Commission Harrisburg, PA 17102 Waehington, D.C.

20555 Joanne Doroshow, Esquire Atomic Safety & Licensing Appeal The Cnristic Institute Board Panel 1324 North Capitol Street U.S. Nuclear Regulatory Commission Washington,'D.C.

20002 Washington, D.C.

20555 Lynne Lerna6ei, Esq.

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Jack R.

Goldberg, Esq. (4) r t

Office of the Executive Legal 1555 Connecticut-Avenue Director Washington. D.C.

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U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Ellyn R. Weiss, Esq.

Harmon, Weiss & Jordat.

Thomas Y.

Au, Esq.

2001 S Street, N.W.,

Suite 430 Office of Chief Counsel Washington, D.C.

20009 Department of Environmental Resources Michael.F. McBrides.Esq.T 505 Executive House LeBoeuf, Lamb, Leiby L;MacRae P.O.

Box 2357 1333 New Hampshire Avenue, N.W.

Harrisburg, INA 17120 suite 1100 Washington, D.C.

-20036 Maupik,Esq.

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Michael W.

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707 East Main _ Street P.C. Box 1535 Richmond, VA 23212 p

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