ML11308A027
| ML11308A027 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 11/02/2011 |
| From: | Calta P, Cruickshank J, Gunter P, Jack A, Kamps K, Sarah Price, Saporito T Alliance for Progressive Values, Beyond Nuclear, Not On Our Fault Line, Planetary Health, Saprodani Associates, Sierra Club, Virginia Chapter |
| To: | Borchardt R NRC/EDO |
| References | |
| G20110757, OEDO-2011-0701 | |
| Download: ML11308A027 (23) | |
Text
Beyond Nuclear 6930 Carroll Avenue (Ad5: EDO Suite 400 DEDMRT Takoma Park, MD 20912 DEDR DED04 Email: paul(,beyondnuclear.org AO Tel. 301 270 2209 x 3 www.beyondnuclear.org November 02, 2011 q,.t4- ,1cY.'
Mr. Bill Borchardt, Executive Director Oh I~wrOf Office of Executive Director of Operations United States Nuclear Regulatory Commission Washington, DC 20555-0001 By email: Bill.Borchardtanrc..qov, Executive Director of Operations, US NRC Annette.Vietti-Cookanrc.qov, Office of the Secretary, US NRC Supplement to October 20, 2011 Emergency Enforcement Petition (10CFR2.206) to Suspend the Restart and Operation of the North Anna Nuclear Power Station Mr. Borchardt:
Attached please find the supplemental request of Beyond Nuclear, Not On Our Fault Line, Virginia Chapter of the Sierra Club, Saprodina Associates, Alliance for Progressive Values and Planetary Health, Inc., also known as the Petitioners, regarding new information and additional requested enforcement action as pertain to the requested suspension of the proposed post earthquake restart and operation of the North Anna nuclear power plant.
NEW AND SUPPLEMENTAL DOCUMENTATION The Petitioners submit the Department of Justice (DOJ) Memorandum dated May 11, 1977.1 "Recommending Against Prosecution of Virginia Electric Power Company for Failure to Disclose Geological Fault,"
Mr. James W. Moorman, Acting Assistant Attorney General, Land and Natural Resources Division, Bradford F.
Whitman, Pollution Control Section, U.S. Department of Justice, May 11, 1977.
1 E1/2~Dc
The Department of Justice Memorandum establishes that both the United States Atomic Energy Commission (AEC) and then the newly formed United States Nuclear Regulatory Commission (NRC) colluded with Virginia Electric Power Company (VEPCO) in the falsification of documentation to conceal the existence of an earthquake fault under the North Anna nuclear power plant during the initial construction permitting and operational license process.
The DOJ memo states, "In fact, the documents reveal a consistentpolicy by VEPCO of not filing during this period any formal document either by way of confirmatory letter, interim investigative report or amendment to the Safety Analysis Report which would have apprised the 2
ASLB and the public of the fault.,
The DOJ memo identifies that beginning in June 1975 after the NRC's inauguration in January 1975, the new agency carried on to conceal and shield Virginia Electric Power Company from criminal prosecution for the violation of federal law [18 U.S.C. 1001 ]
concerning the withholding and falsification of material fact in the federal licensing of the North Anna nuclear power station.
The DOJ memo further concludes that the Justice Department could not proceed with the criminal prosecution of VEPCO by stating:
It... we would have a much stronger case against VEPCO but for the actions of the NRC in sanctioning the continued construction by VEPCO and concealing on its own part 3
from the ASLB (Atomic Safety Licensing Board) the discovery of a fault."
"VEPCO would call as witnesses virtually the entire Office of Regulation of the NRC to 2 Ibid, DOJ Memo. p.15 3 Ibid, DOJ Memo, p.15 2
testify that they were well aware of the fault and had determined not to take any immediate action to halt construction or to reopen the hearings."4
"[Tihepossibility of successful criminalprosecutionof VEPCO... is dictated largely by the actions of the Commission itself which in the best light can be characterizedas ill-consideredand inept, and perhaps more realistically,as demonstratinga pervasive bias againstpublic scrutiny which a project of this importance deserves and is entitled under federal law. Had it not been for the persistentefforts by Mrs. Allen and her group, it is entirely likely that the NRC would not even have convened a full adjudicatoryhearing on the fault question or have assessedpenalties against VEPCO. I deeply regret that criminalsanctions may not be brought againstVEPCO for misconduct in an area of such major importance as the civil construction of nuclearreactors."5 The Petitioners additionally submit the November 2, 2011 letter from Project On Government Oversight (POGO) to the Chairman of the U.S. Nuclear Regulatory. 6 The POGO letter identifies that a large amount of documents relating to the original siting and licensing of the North Anna nuclear power plant on an earthquake fault is under lock and key by NRC order at the University of Virginia library.
In the letter POGO requests of the NRC Chairman; "Nearly 35 years later,these concerns still have greatresonance, and should not be swept under the rug. The NRC should promptly release the documents at the University 4 Ibid, DOJ memo, p. 15 5 Ibid. DOJ memo, p.16 6 "POGO asks NRC to Release North Anna Nuclear Power Station Records," Project On Government Oversight, November 2, 2011, http://www.pogo.or*g/pogo-files/letters/nuclear-security-safety/nss-pp-20111101.html No ADAMS accession number presently available, 3
of Virginia so the public can determine their relevance to current safety decisions. The fact that a recent destructive earthquake was twice as great as the design basis for reactorswhose siting and licensing was the productof a regulatoryfailure underscores the importance of an amended license and heightened transparency." 7 ADDITIONAL REQUESTED ACTION Therefore, in addition to the emergency enforcement actions requested in the October 20, 2011 petition jointly filed under 10 CFR 2.206, the petitioners join in POGO's request for the agency to make public all records currently being withheld in the University of Virginia library pertaining to the North Anna nuclear power plant as pertains to siting the reactors on an earthquake fault. This documents as made public should then be incorporated into a transparent decision making process for the restart and operation of the North Anna units.
The Petitioners reiterate their October 20, 2011 requested enforcement action that the NRC issue an Order to Dominion to make application through the transparency and disclosure process of a license amendment request as amplified by POGO letter and the proffered new information.
Given the referenced history and the DOJ finding of "a consistentpolicy by VEPCO of not filing during this period any formal document either by way of confirmatoryletter, interim investigative report or amendment to the Safety Analysis Report which would have apprised the ASLB and the public of the fault," the Petitioners further request that the NRC not allow VEPCO to proceed with any additional license basis changes for the Design Basis Earthquake under the 10 CFR 50.59 process which would provide earthquake related licensing basis changes with the further non-disclosure cover of a corporate proprietary veil.
7 Ibid.
4
Sincerely, Paul Gunter and Kevin Kamps Beyond Nuclear 6930 Carroll Avenue Suite 400 Takoma Park MD, 20912 Tel. 301 270 2209 Email: paulkbeyondnuclear.orq Web: www.beyondnuclear.org Thomas Saporito, Senior Consultant Saprodani Associates Post Office Box 8413 Jupiter, FL 33468 Email: thomas(-saprodani-associates.com Web: http://Saprodani-Associates.com Phone: (561) 972-8363 Fax: (561) 972-8363 Paxus Calta Not On Our Fault Line 56 Tupelo Ridge Rd.
Louisa, VA 23093 Phone: 541-505-0803 Email: paxus.calta@_gmail.com John A. Cruickshank, Chair Sierra Club - Virginia Chapter 422 East Franklin St.
Richmond, VA 23219 Phone: 434 973-0373 Email: jcruickshank4(,qmail.com Web: http://www.vasierraclub.org/
Scott Price Public Policy Director Alliance for Progressive Values PO Box 14664 Richmond Va. 23221 Phone: 804-573-9635 Email: spriceCapvonline.orq Web: www.APVonline.org Alex Jack Planetary Health, Inc.
305 Brooker Hill Road 5
Becket, MA 01223 Phone: 413-623-0012 Email: shenwaDbcn.net Web:www.amberwaves.orq November 2, 2011 6
Hr. 'Jai-,..3 1.1. qoornnn Acting ssistzuit Attorney General .aY !!, 1977 Land and Nat'ural Resources Division Bradford F. Whitrman syh Assistant Chief Pollution Control Section lecouaending At;aiast Prosecution of Virginia t.lectric Power Company for Failurc to Disclose a Ceological
-Fault (18 U.S.C. 1001) ._.
ATG:BFW 90-5-1-7-220
'I RISTORY OF THE CASE In 1.975 the I,*nd and Natural Resources'Division, at the request of a citizen (.Trs. June Allen), conrnenced ar investigation to determine whether violations of 18 U.S.C.
1001 may have been committed by Virginia flectric Power Couipany or any of its consultants by the filing of certain statements with the Nhuclear Regulatory CoraI!isslon in the period from 1971 throuZh 1973 that no fault van suspnceted or hnowni at the ,ite. In June 1975. we asked the Executi.ve Legal Director of the i(iC, howard Shapar, for his opinion a, to whether a criminal action was warranted. ,e replied hy letter of June 20, 1975 that he did nott bolieve a cri-,iiia]
action, was warranted because we lacked proof of intent by the company to file false statements. In response to our request for all pertinent documents and. materials, he sub-raitted files of the CoE.mission including depositionr, and exhibits to several ageucy proceedings. An intensive craizw-ilation of all the records of the NRC was conducted. In addition, rmaterials were submitted to us by Mrs. Allen, Chairman of the North Anna Environmental Coalition, and v.e reviewed these doctuacrnts in detail.
The Uluclear Regulatory Con anission determinne,1 that the fault discovered under the four nuclear reactors :t the North Anna plant was not "capable" in terrms of the ?!!:C regulations (10 C.F.R. Part 100, Appendix A) ain' ther*eore was not a threat to the safety of the plant. Accoriiuly, the NRC denied an application by the North Anna Enviroriental Coalition to revoke the perimits for the reactors. T"he Cormiission decision was upheld by the Court of Appeals for
the Distjict of Colu,'bia. The N4RC in a repnrate. proceeding, however, levied penalties in the amount of $32,500 against VEPCO for the :niaking of material fal!;e statements concerning the fault. ulii case is prcnently on aplpeal in the. Foulrtz, Circuit Court of Appeals. For the purpose of the aency proceedings, it was stipulated that "intent" was not an element of the offense under the Atomic Energy Act, 42 U.S.C.
2236 and 2282. The IRC found that the record w.ould not support a finding of willful or:deliberate false statements by VLPCO."
After our review of the- documents, we decided that a number of the company--officials shcul.d be requested to submit additional taterials and to answer ques-tions since they had not been questioned by any of the invest'igators of the NIRC and the issue of "ocienter" on. the part of VEPCO in fact had not even been examined. We asked Mr. 11nupin, counsel for VEPCO, vwhether lie would submit VE.PCO employees for deposition under oath in lieu of .rand jury testimony; he consented te this procedure. Ti\jelve VEPCO 6fficials and one former VEPCO official were deposed at the Depart*ment; each official was advisad at the outset of his Fifth Amendment rights and was aiccompanied by counsel at the deposition. Additional documents were sub-mitted. Hiowever, it was not until virtually the end of the investigation -process, when we contacted Stone & Webster Engineering Corporation,. VEPCO'n nrchitect-eng-ineer for the Porth Anna project, that counsel for VEPCO "discovered" a file entitled "Amendment 20", which included draft safety analysis report amendments' prepared by Stone & W-lebster disclosing the
- geological fault. We established at the depositions that VEPCO personnel deleted all. references to the fault and filed the araeudment on July 31, 1973 with the statement that no fault was knoni at the site.
Finally, a session was held with Mr. -aupin to describe potential criminal chargýes. Two additional conferences ý-.ere held with VEPCO's newly retained counsel, Hlerbert J. Miller, during the weeks of April 25 and Iay 2, 1977. lie was advised by Mr. 'Taft that we were reconsidering our evidence and would contact him prior to any further action.
I*LEMENITS OF THlE OFFENSE UNDER 1;JU.S.C. 2.001 Section 1001 makes it a felony punislialde by $i0,'00
- fine, or imprisonment for 5 years, or both, l:nowincl.y and will-fully to falsify, conceal or cover up a material fact in a matter within the jirisdiction of any United States Department or Agtency or to make any false, fictitious or fraudulent statement or repre-sentation or to make or use any document knowing the same the con-tain any false otateraents.
It is we].1 established that the fa2.se stateinent or concealed fact miust be found "rmateria],". ,Iaterialitv is defined as the'natural tendency of the documwent or at:'nme'nt to 1.r'.ce or affect the ngency action. 1.h*ether or not t'e at:encv in fact relied upon the statement or suffered any snecific harn is .rrolce-vant to the prosecution. Second, the Covernment must show that the defendant "knowingly and willfully" filed a 'false statement or concealed a material fact. In several of thre leadin-. cases the courts have taken a broadl view of this requirement to include a reckless disregard on the part of the defendant as to the truth or falsity of the document. In other cases, the courts applied the traditional definition of knowing and willful, i.e. deliberately and with knowledige of the falsity and not by nistake or inadvertence.
MUAIRY Or, Vir EVIDE-icE A, 1970_to 1973 The evidence shows that Stone & Webster d'incovered a chlorite sean in the excavation for Unit 1 in 1970 which its chief geologist examined as a possible fault. lie has testified before the Co-mission that although the presence of chl.orite itself. is an indication in: some cases of movement along a Fault, in this particular case he.believed it resulted froe weathering of the rock and that other characteristics of a fault, primaril'l offset or displacement, were not present. Three private -eologists not employed by the compairy did visit the site-in 1970 and did conclude that a fault existed although the VL.PCO representative who accomap-nied them to the site and was uiishilled in geolop.y does no.t recall being advised by any of thenr that a fault was present. In any event, Stone & Webster did not notify VrEPCO formally of the possibility that this feature was a Peolo -ical fault but instead proceeded with excavation and construction of the units. The presence of the chlorite .sam was reported to the Atomic.Energy Corrqission in the applicant's Prelimi-nzry Safety Analysis Report (rSART). In 1971 an exteiision of the save feature was discovered at the site of the second group of r-actors, Units 3 and 4. ].ut until excavation for Unit 2. in April, 1.973, the geologists had not observed any offset along the chlorite seam. In view of the disagreement nmoni the experts as to the characteristics of the chloritL-seam underlying Unit 1, the publication by the Atomic Energy Commission at: that tine of instructions encouragiinp applicants not to file all technical re-)orts with the Comrmiss ion, and the--Tact that V17PCO did make reference in its PSAR to the chlorite seam, we believe that there was no basis for a criminal prosecution prior to April, 1973.
- 4-B. 1973 As of April, 1973 the status of the licensing proceed-ings for the four units was as follow:s. For Units 1 and 2 the applicant had filed for preliminary review on Varch 16, 1173 its Final Safety Analysis Report (FSAR). On April 17, 1973 the 11RC advised VEPCO that the FSAIR was deficient in a nu.nber of -
respects and, in addition, specifically called for submission of geological repor:ts. 07 April 30, 1973 the FSAT. for Units 1 and 2 war, filed by VEPCO (73 copies) and accepted for final review although the applicant had not yet corrected the deficiencies. No hearings had been scheduled with respect to the oj~erating license application (i.e. the FSAR) for Units I and 2. 7he construction permit had, of course, been granited for Units .1 and 2 in 1971.
With respect to Units 3 and -4, the PSAP had been filed on September 15, 1971; the PSAR conatitutes the application for construction per-mits. Notice was subsequently issued of the est*blishueut of an Atomic Safety and Licensinr; Board to hold a public hearing and to issue the initial-decision ordering the Director of Regulation either to issue or deny the construction pernit. On April 6, 1973 the N1RC staff submitted ito final Safety Evaluatien Report for Units 3 and 4, and on April 27, 1973 the ASLB co0vcLed u prehearing conference in Frederickstburg-,
Virginia to establish procedures-for the forthcoming construction
, permit hearing. The hearing itself is required by statute. 112 U.S.C. 2239. The ASLB, aa scheduled, held construction permit hearings for Unics 3 nnd 4 from May 7 through May 10, 1973 and visited the site on M-lay 8, 1973. The sole contested i.*:ung
- at this hearing related to the discharge of heated water frorm the Lwo reactors into Lake An'na.
On April 24, 1973 John Brideis of Stone & WebF:ter Enginceriug Corporation (S & W) telephoned Clifford Robinson, VEPCO'a engineer assigned to the Vorth Anna plant, to advise him of the discovery of a possible fault. in the excavation for Unit 3. Brideis had visited the site at the request of Mr.
Pastuszak, who originally had noticed an offset in the pit and reported it to Yr. Rosenblad, also of S ,y. A. 1Pobinsoii rtated that he told his supervisor, Mr. Alligood, of the possible fault, and Alligood in turn told Mr. Spencer. Spencer told his; supervisor lir. 1ills, and finally Mr. 7,4ills told Willia-m Proffitt, then E.xecutive M.niager of Power Station Engineering rnd Con-Gtruction for VEPCO'..lobinson and the .1; & 1.' engineers visited -
the site on April 30, 1973 arid agreed to call in Domes & 1,oore (D & H), an outside consultant firma which had performed the
site inve3til-.atiouL for VilPCO under Unit: :1 uAd 2 and ULits 3 and 4. All VLPICO personnel have te.,ti~ied that discovery of the" feature was not considered routine but rather was a matter of some urguncy.
On May 2, 1973 15 & N en ineers, together with Allii..ood, visited the site. Mr. Ellwood of D & 11 stated that he believed there was not a fault at the site. lie hypothesized that they%,
were viewing a coincidental appearance of two pegmatite dikes rather than a single dike which had.been offset by movement along a fault. Other geologists such as Mlr. Pastuzak and
-r. Nivarpikar, both of S & W, believed that a fault was present.
Ellwood recommended tihat in any event additional data would have to be gathered to support his conclusion. On or about !,.av 7, 1973 HobinsonL retained Professor Wise from the University of Massachusetts, a noted Piedmont geological expert, to visit the site and identify the feature. Spencer who had learned of the possible fault on April 25, 1973 testified at the public hear-ing on Ray 7-10, 1973 that the PSAR was true and correct to the.
best of his:knowledge. The PSAR contained statements that fault-ing at the site was neither suspected nor known. Wills was also present at the hearing, although he did not testify. 'Mr. Ba~um, VEPCO's Manager of Licensing and Quality Assurance, preiiented a Summary of Application that the site was safe for a nuclear plan t.
On Hay 7. 1973 Elilwood telephoned Brideis and Robinson to indicate that his prvliminairy p.eological ntapping showed that there had been some movement along the chlorite seam; houever, it appeared to him that the tmovement was not consistent with the hypothesis of a single pegmatite dike offset along a "normial" fault. On May 9, 1973 Stone. & Webster .senr a letter to VEPCO's Senior Vice President, Stanley Ragone,- notifving. him of the discovery of a "cornplex geological feature' which had been exposed in the containment excavation for Unit 3 and recoi:mniendinr.
that lie in turn notify the AEC that'a detailed inve3tigation was being conducted. On Hay 14, 1973 Professor Wise visited the site aud concluded that in the face of the six-to-ten foot displacement one could not argue that there was no fault. le identified two periods of motion that had occurred and recommended a:detailed study. Wise has testified before the NRC that the feature was a complex, one with a reverse offset and that lie believed it- was reasonable not to have finally concluded. there was a fault prior to 1lay .14, 1973. In any event, on flay 14 all the reoio-gists concludied that R fault did exist at the site. Robinson told Alligood of the conclusion. On May 15, 1973 a mautin! '.'as held in Mr. Proffitt'q office and the other. enrinicdrinr, ,larsonicl of VEPCO were advised. Mr. Ragone war inforned by Mir.. :'roCfitt and he in turn, advised the V'resident of VPIICO, Justin Il0ore.
- !sore told Ral.ote to advise the Atomic Enerszy CoUmrpisoioa by
pIhonc atid Ragone so instructed Baui.--Accordilng to a memoranru,.n of a phone conversation, Brideis of S & U was told by Robinson that Rigone would advise the AE'C of thk discovery by phone "to avoid leaking the information to' the -cneral public."
On May 15, 1973 Mr. Baum placed a -call to Mr. Schu.encer at the NRC. Schwencer was out. On Hay 16, 1973 Uau.p. Diaced a call to Mr. Ferguson, IIC's North Anna Project Director, and Ferguson was also unavailable. On May 17, 1973 Schwencer returned Baum's call. According to S6hwencer'a telephone neioranoum, ta'.Tl advised him that VEPCO had discovered on .,av 11. 1973 a chlorite seam indicative of possible rock folding..T-e 6ord nult does not appear anywhere in the telephone'nmcmorandur.i, and Schwencer has stated that if he w.ere advised of the discovery of a fault he would certainly not haive omitted it from his record. Also, there is no explanation for the date bf Z-Uay 11, 1973 -ohich is inconsistent with the initial discovery of the feature on Anril 24, 1973 by Robinson. May 11 was the day after the final session of the public hearing. On May 18, 1973 Catrdone, the ITC geologist, *called Spencer of VEPCO to follow-up on the phone call to Schwencer and to gain further knowledge of the feature.
Spencer brought Robinson to the phone, and Robinso-a recalls that; Cardone did indeed believe that, there waa only a chlorite seam present and did not understand that a fault had been found.
RFobinson, states that he inform.ed Cardona that the feature was a fault. However, Robinson's notes indicated that he urged Cardone not to visit the site until VEPCO had "a case prepared.."
During this tin.e field investigation was contlnuing at the site and D & M had obtained additional consultants:
Professor Low;ell A. Douglas from Rutgers University and Professor Paul Roper from Lafayette College. Profensor Vlise submitted his indepe'ndcnt report to VITCO on Iay 25, 1973 outlining a detailed investigation which he believed was necessary to "date" the fault. (The regulations at 10 C.F.R. 100, App. A, define a capable fault as one which has moved once in the last 35,000 years or repeatedly within the last 500-,000 years.) Ellýýood from D & 1 was disturbed by the tone of Wise's report and urged Robinson to have Wise re-w'rite substantial portions of the report. On June 2, 1973 a rneeting was held at the Stone &
webster headquarters to discuss the fault. Mr. Rosenhbad's notes indicate that there was concern that the consequences of the fault were "bad for 1;'and 2" and additionally may impose a problenr for "3 and 4'" with respect to desig.n. "lle retuilations prescribe that in the event of discovery of a capable fault, additional design parameters w.;ould have to be developed for the plant, and, at the worst, the plant would have to be relocated.
On Junie 1.3 a neeting was held at the Richnond headquarters of VEPCO at which VEriCO P-nd 'their consultants discussed hou to present the fault to thie NRC team of geologists w..ho w;,e- to arrive *on the site on June. 18, 1973.
S & 1. and D & 1 staff mn.bers discussed the 'Possible une of the term "shear" rather than the word "fault" at the rioetin3'.
or at least in the written report to avoid "the broad scope of connotation" of the word "fault". Finally, Mr. Gibbons of D & N insisted on the use of'tho word "fault" at the uneeting with the NRC.
On June 18, 1973 the NRC Ptoject-Director, -'obert' Ferguson, and two geologists, Cardone from hTMC tad Houser from U.S.G.S., observed the fault and were informed of the history of the excavation. They were 'also shown pictures of the chlorite seam under Units 1 and 2. ' Cardone corn"1ained about the nbsence of a written report 'at the meeting. 47r.
Alligood of VE.C0 inquired of the IRC team whether there was
.any need to.halt construction at the site. Houser replied that he was-satisfied and they could go'ahlead and .Cardone had no courent on. the subject.
Following the June 18, 1973 reeting.Ferguson prepared a detailed trip' report outlining the discovery of the fault and the company's proposed: investigation. . The trip report was placed in the public document room in accordance with the general practice on June 26, 1973. Subsequent discussions over the telephone %7erc held between VFPCO'saMr. Robinson and INC's Cardone. Although a VEPCO engineerinpr staff raember etated that it was customary to confirm telephone reports to the INRC by letter, no such letter was transb*itted relating to the fault from May 17 until the final. report was submitted on August 17.
I.TeanwhilO, S & W had been asked by VEPCO, following an April 19, 1973 weating with NRC, to prepare additional amendments to the FSAR for Units I and 2 to satisfy the deficiencies noted by the Comiission.. The evidence shoo-s that Stone & Webster was late in submitting itR proposed amendcment but that on June 29, 1973 S & W's Mr. Burroinhs submitted proposed ltnigurgc..for an "Amendment 20" to VEPCO. The proposed amendment wan submitted to Mr. Rutkowski and routed front him to 1r. Prince and then to Robinson for their comaments and .
.changes. The relevant portions of the proposed amendment were as follows:
(I) Page 2.5-6 of the orieinal F',AR illciuded the state:ient, "faiTItiug- of roc.
at the sitn is neither kno*-m nor is it suspected." Thii statewnent was not chaw;*ed by the amendment and there-'i,; no avidoumce that either S & W or VUPCO enplovees con-
.idered correcting this statevient as part of Amendrment 20.
(2) Pare. 2.5-10 of the original FSAR I and 2 contained the statement, I'aultinr.
at the site is neither known nor sunnacted; all availabl].e ii(foSr-Hone the continuity of strata." S & NF's proposed page 2.5-10 contained the replacement lan-guage, "Fa:ulting of rock strata at the site is not known. All availablo information t-endsto.
N ýcofirr.i the continuity strata."
(i:umphasis added.). There is no evidence of any deletion or comment by'any of the V1PCO cinployees with respect to this staterient" from S & W, and it was subm.itted as part of Anendnent 20 as written. " Rutko*:ski did tes-tify 'that it wa:; his practice to draw a black line in the marp.in opposite :ny. nw1M aterial that was submitted to the NRC. In this case, he reorgani-zed the section and did not draw a blac,- li-a oppotsitc the stateL*i'.t. VEPCO naintains that this supports their po!;ition that this blatantly false .taterant was unnoticed and was included as ýa result of mistake or inadvertence. Since we have not examined any S & W employees, we do not have their explanation on this point.
(3) S & W proposed to submit as part o[ a supplement volume certain answers to the deficiency requests made by the ;h.C in April. In response to the NRC comment.
"Underlying Tectonic Structures. - Provide a detailed description of tectonic structures of the reg;ion including the maps and asse:asment of activity status," S & W proposed tlhe follow-ing language at Page D2.5.2-2:
AdUitiono1 iaformatiou w.: revialced during the excavation of the adAce.it*
Units 3 and 4. An area indicative. of very old minor shearinv', 17noven.ent along elorite Cha rich foliation plane was identified along the southern side oF Units 3 and 4. Zones of this nature are frequent and cormmonly
found within the rnetamorphhoned and comuplexly folded rocks-of the Piedmont capital province. Tley rrpreserc old; features related to the re*ional folding during or at the end of th-1 Palcozoic Era, 260 + M¶.Y. old or older.
The. evidence indicates that Pobinson del.etedbis response and noted: "This info will be well covered in the report to lie submitted to AEC August 17, 1973, for NA 3 and 4. Best not to say anrjthingat all.
about it now." ."
(4) In response to the.,RC corrient, "Surface Faulting - Troughout this zection referral is made to other portions of the Final Safety Analysis Report. which nre thicmselves only sixrtmaries of reports sub-mnItted for the construction permit. To facilitate a meaningful evaluation of thi,6 section, the applicable data should be rade a part of the FSAR," Stone & Webster pro-posed languape at Section 2.5.3.7 as follows:
There is no zone reouirinr! de-tailed investigation of faulting of rock strata. A zone of shear. Vtove-ment with [sic] a chlorite rich foliation plane between rock strata was investigated for the tadjoining Units'3 and 4..
Robinson deleted the reference to "the zone of shear movement" and noted: "This w.ill be handled in ITA 3 and 4 report, as stated previoualy.
(5) In response to the same N10C deficiency coinicnt, S & V also proposed language at Section 2.5.3.8 similar to that at Pare*D2.5. 2 - 2. sua. Robinson deleted all references tEo t1fe fault discovery and retained the sentence that there was no evidence of "active faulting of rock strata" in the site area.
Robinson's a coim;ents werc returrn..1 to ,ut!*c...- ,
or about July lG, 1973, and ..then P.ut QtwH1, . IPCKI th, S & W ILnguage delcted," went to PTobin; :il', ,..lr explanation. Rutkowski states thst hr! initiallv tid r-.'0:
ag;ree with the deletions by Mr. Robinson but '.os nerzswiad by him to incorporat'e the changes in' the originl amandi-.cut.
llTe amendrient was fil.ed on July 31, 1973 under Pagone's cover.
letter sijned by Baum. In addition, the amendment uas served individually upon the three Ticmberzg of the ASI..B panel who had considered the North Anna Units 3 and 4 construction pernit application during the May 7-10, 1973 hearings. Their decision
- on the construction permit was pendipg.
VEFCO hae consistently naintained that the only reason why tho references to the famlt were deloted was that a full report was being submitted later under the docket numbers for Units 3 and 4 and tAq.endment 20 was to be filed only under t oc]et'numbers for Units 1 and 2. They offer no explanation as to why the onAendijent was per:ionally served
.on the licensing board which was considering the 3 and 4 application: -In fact, on June 28, 1973 an AST.1B nanel had been established to consider the operating license for Units 1;-and 2; ;none of thle 3 members served on the constrnction---'
permit pane]l for 3 and 4. Also, Rbbinson has adwitted that since April 24, 1973 the:-e was no doubt in the minds of any of the geologists that the feature discovered. uider Unit 3 1was an extension of the chlorite seara earlier found under Units 1 aid 2. Thus, the fault investigation was highlv pertinent to botti applicatious by VEPCO. Ile have not: examrined any of the S & 17 staff to determine whether they were called by Rutkowski or Robinson to explain the nature. of the final changes.
Robinson'sE notes prior to July 12. 1973 indicate that both he and Dv& II intended to file an .nterirn investigation report with the Coamiission describing the preliminary findings of the fault investipation. On July 12, 1973 the notes record a conversation with Ellwood of D & H as follows:
Told him of change in NAIreport: no interin report - only n final report to be -ubnitted as AFC has indicated that su1.ission oF report will hold up CP. Date now is Au,..ust 17; draft will be here no later than the 10th of
, Augus t.-"
- Ii -
This col;Cuit indicates that Robinson believeA. the su',sion of anv interimi report uould hold up th-L. cTnr)1uct.on .-*rnit and thdit it would be preferable to proceed With co0stru'ctio)J as permitted by iNouser and Cardone. X0thout risl¶in!. n*i ta: of the construction pernit proceedinlIs. :vhich Vould result: f-rcm the filing of a writ~ten report. It is logical that Roiobinson had the same view of tho written amnwndment to the Safety tanalysis Report as he would have had for the inver.tigation report itself. Other notes during thin period indicated that VEPCO port;onnel did not want the discovery of the fault to be leaked to the public before they had conclusively determined that the fault was i;iinor, ancient, and-of 71 no ig.ni-fLicence to the project. One can conclude that V/PCO feared June Allen and her friends would delay the construction permit if they learn-ed of the fault before a final determination, of "Licapability" had been made.
As of this tire, the ASLB panel for the construction permit application for Units 3 and 4 had kept the record open until receilit from the Virginia State Water Control Board of a certification under Section 401 of the Federal T.Waaer Pollution Control. Act that the heated water dischargecs from. the nuclear plant into Lake Anna would not violate water quality standards.
The ASLB had not been advised'of any of the details of the fault.
discovery or investigntion by either the company or tho staff.
.Following corq)letion of our depositions of the VEFCO pernonnel, we interviewed severnl I;.C officials, some. of when had already givan staterients td the F.L.I. about the phone cnli from VEPCO ou .' ay 17, 1973. !.c were stunned to learn at this late date that knowledge of the fault had Fone far beyond the technical staff level. Prior to this tine none of "tha re.ulatory personnel or the Jawryers in the office of the Executive Lcial Director or Gcneral Counosel had advised us of the extent of k..n6w-:ledge of the fault. We interviewed the following persons: David 1'artalia formerly staff attorney assigned to the V!orth Anna case and no,,.,
in private practice in Maryland; Stephen Lewis, alqo a staff attorney and still with the NRC; Eduard Case, formerly Deputy Director of Nuclear Reactor Regulation and now Acting Director; Robert L. Ferguson, rroject Director: Albert Schwoencer, Ch1.et of Operating Reactors Branch No. 1; A. T. Cardone, reologitit;
.;illiam P. Garmrill, Chief of the Site Analysis .rsnch; and Seth Coplan, formerly a seismologist with the N.C.
We established that followin., t!'-.e June 1;,, 1973 visit to theneetilng regulatory attended reported site, Ferguson by Case's tosuperior, Case at .iJohn OIL'.ry, formerly Director of Nuclear teactor Reg-ulation and now head
of FEA, and by L. Itanning l]untzinc.,.. Di;Xcctcr of Rclulattinn.
1Nr. Muntzing vas the top regulatory official in PP.. ' e7-1.-son (derlcribed the fault as a feature which'the nolnorists belioved was zancient and not capable. Apparentlv, therr, ha.n! 1,0.eo ro capable faults determined to exist in the Pie&r7iet icyiop.
Kartalia raised the question of wheother the ASL.; should be notified of the discovery. Ferguson states tbint he gu1'j'estý-'d simply sendiiiý his tri.p report of tho. fnu].t invwstigation to the ASLB. 'lartalia suggested rendinp a letter recomnc'ndini that the ASLB reopen the hearing in the Application for Units 3 and 4 to consider the fault question. An affidavit fron Cardone was also to le rubriftted to the loard. Case disayreed wi.th Kartelia beca'soe lie felt it was "piremature" to request' that new hearings be held and he thouIiht that an affidavit could be submitted to oupplement the public record without further hearings. Knrtalin told us that Case was interested prizaarily in avoiding further delay in the construction nermit and that his view.' ultimately prevailed. All witnesses agree that O'Leary' stated that the ASLB should be notified but left it to the otliers as to how and when to do it. Nlo one recalls wAhat decision !luiztzing took.
The witnesses recall that addl'ticnal h.h-1eve1 dis-cussions wereheld on this subject before the affidavit of Cardone was prepared on or about July 20, 1973. Cardone'n affidavit stated that a fault had" been discovered at the site
-for Units 3 and 4. that he had personally, examined it on Julc' 131, 1973, and that base.d upon the data from a prelirinary analy.,sis he believed that it was not a capable fault and that there wras no reason to change the staff's initial Safetv Tlvaluatinn , port that the site Was acceptable. Cardone %;cnt on to say, hoa-,Pver, that VErCO would file a final report by Aui,.ist 15, 1973 and that the safety question should be resolved- on the basis of that report. A cover memiorandum was prepared from Cardone to
- artalia which stated, among other thin.., that "on the basis of this affidavit the b.ard will be requeisted to proceed with their initial decision." rOle cn conclude from tl-is m;er-o that as of July 20. 1.973 the iitaff did riot even intend to recuest the ]Doard to reopen the hearings so that the pu!'l-c cou.ld be heard on a matter as vital as the sitinn of a nuclear po-er plant directly on top of a Reological fault. Carbon copies of the July 20 cover meno were sent to seven staff raenibers as far upn as Case.
petween July 20. and August 3 ho,::ve.r. the decision was apparently utade not to request the Aoarrf to proceed w.,ithi its initial decision -buit siAply to subrit: for their consideration
c:he affidavit from Cardone. Accordiiigl.y, (cn August 3,. 1973 the Cardona affidavit was filed ,ith the A.LE. The filin1
.of the affidavit caimo on the heels of c phone crill Ero:n lDrs. Allen to Mr. F'rounlle of NRC recgion 2 in Atlnr.t-'. whrvrien she asr.-ed .hether there %.ns a geological fault atINorth Anna.
lri. Brownilce in turn called VEPCO and apparently was notifice.
that a fault did exist although it wan considered to be of no
.significance. VEPCO warned Brownlee not to engap.:e "in. a lon dsioande telephone conversation with an unknown caller." By memorandura of Augtust 8, 1973 Proffitt advised 1..aone that
- there was "considerable discussion" within .PCO about ,rs.:
Allen's call and that Moore, Presidezrt of VEPCO, vas also advised as to the real possibility of the public becomiing aWare of the situation. It was finally deci6ed that there would be no voluntary statement by VEPCO regardingr the fault because "the concern was that if this developed into a.substautive issue.
the ALC would, in fact, withhold the i.snuanee of a construction permit."
Finally, on Au,,,st 6, 1973,.contrary to VEPCO's plans, a story was run in the local papers that a fault ha"i boon discovered at the site of the Nlorth Anna Plant. VEPCO hurriedly asserbled the experts and made a" presentation at a news conference..
On August 17, 1973 VEPCO submitted the final 1)& li report entitled, Supplemental Geological Data. The report concluded that the fault was not capable in the terns of the NRC regulation. It. -was the consensus of the .geologists that the fault was older than one -million years. Or. August 23, 1973 the ASLB asked the staff aMd VEPCO hot; to proceed in the face of the affidavit. On August 29, 1973 the StatelWater Control Board issued the 401 certification.' On the same date the staff as-ecr thb. ASLB to hold open the record for furtheri- proceedings. Another site tmeeting was held with the MRC and VEfPCO on Snpteniber 7, 1973.
It w.7as at this meeting that the S & 1,W report relating, to the diacovc-y of the chlorite seam under Unit 1 in.1970 was first revealed to. the Commission. The report was subsequently filed with the Coia-nisaion on October 15, 1973.
Finally, on October 17, 1973 the MRC staff noverd %or an evideutiarv hearing on the fault in the Unit 3 and 4 pro-ceeding and the Director of Regulation issued nn order to ahow cause why the construction permit should not be at's-pended with re:spect to Units 1 and 2. Subselqucnt he.rilnl; on the show cause petition and the imposition of Pnenalti-s extended through 1975. As indicated above, the penhltv 4 cisi.on is on appeal. It should be noted that tho Directornte oF !iecru-latory Operations, which was the 11RC enforcement ari*a at this tiMe,
- 14 -
p..orformed c an investi.ation without even it erviei7i.n? thie pririary ViTCO personnel or e-:aminiiijg remoranda of VEPCO and S _ 1.1., They concluded that there was no .violntin of .. v law or regulation and no basis for the !i.positi.*n of .- y."
penalties whatsoevar. The frxecutive. Le..a]. DI rector later commenced his ow-n investipation which resulted in the irnpso sition of the civil penalties.
IV LEGAL IVALUATION OF POTEIITIAL PROSoCUJTIOl FOR VIOLATION OF 18 U.S.C. 1001 The evidence shows that althougdh S & 1.Wgeologists may have had some basis for missta!ing the -ppearance of the fault under Unit 1, a definite offset 'was observed in April 1973 consisting of from 6-10 fee.:" in the excavatton for Unit 3. This discovery was viewed by the Engineerin.g Dcpartment of VLPCO with considerable concern, although the company's retained geologists did not finally accept the feature-to.be a fault prior -to May 14, 1973. Obviously,' both S & 1T7,nd D & E.,
had their reputation (and their contracts) at stake since they had jointly conducted the entire site investipation for all four nuclear reactors and had certified the site to be free from any fault prior to April 1973! By one company estimnate, the total investment in the site by VEPCO prior to May 1973
,was in the neighborhood of $730,000,000. Abanndon[!0ont of the site at this point t..auld have been intolerab].e from both a financial and public relations standpoint for all persons involved. In addition, the contemporaneous notes of the. VEPCO team are replete with suggestions to "overwhelm the IZRC witi talent" and prepare "a convincing story." It is deeply distu;rbing to think that the people entrusted with desisti and constroction of nuclear power pl.ants for the purpose of produciun energy for
- the public actually view the public as adversaries.
The heart of the case nay be broken dot..n into tý..o S
time reriods: fror. April 24, 1973 until 1Hay 14, 1.973, ;,.nd from Hay 14, 1973 through August 3, 1973. In the early period at least onle geologist. Mr. Pastuazah from Stone & Webster, "strongly believed" that a fault existed under Unit 3.' Other c'eolo-:ists and Robinson of VE.-PCO, who had limited ,col.o7.ical t:rainini, suspected that a fault existed. Thi.s suspicion wan relayed 1-7I Robinson to his superiors within %TmCO by momorand'.r V!, !!Tav I, 1973. On the other hind in the same rýerporandui.m, Robinson notes that the geologists could not reach any conclusion as of pril 3:),
1973 as to ,;hether there was in fact a fault. S;i,'r'- notes
from the samre meeting conclude-: that "on lance it is belicevd thcre is not a normhal fault." Iro11oviný the.
ilay 2 neoetin'ý l5liwood's preliminary opinion of "no fnault", 1tn. U!oirtc! by data, was also forwarde(I to Spericer in a nefor:u t.,
althou,.h there cui be no doubt that a fault was suspectcd prior to the 1ay 7, 1973 public hearine it tiould te difficult to obtain a crimi-inal conviction of VLPCO for failure to re:ort a feature at the public hearing ,hich had only hee knoýn for about tw~o weels and about which there was some doubt as to whether it was indeed a fault'. If the -irle period were g.reater or if the investigation had proceeded further along, ea would have been able to charge VEPCO with concealment of material facts during the public procceding ýxd with making and using, a false document (the PSAR).
"During the second period after the May 3.4 meeting, w;-e would have a tuch stronger case against VFPCO but for the actionn of the 1I1;C in sanctioning the continued construction by VEPCO and concealing on its own part from the ASLB the dis-covery of a -fault. It should he understood that the ASLB, according td NRC regulations (10 C.F.R. 2.718 et son.) has the powxer to reopen the proceedings for further evT(en-Fve and its decision becowcs the decision of.the Nuclear Reculation Comirtscion unless it is appealed. The ASLB decision in effective ii-.-ediatelY, and a permit tnust be iL-sued by the Director of Regulation 'upon entry of a favorable deci.sion. Since the ASLB, then, does act as
'a separate adjudicatory panel, ve could argue that notice to the staff does not constitute notice to the agcncy, which at this point is represented by the ASLB. In fact, the documents reveal a consistent policy by VEPCO of not filing churing this period any formal doctuaent either by way of confiratory letter, interir.
investigation report, or amendment to the Shfety Analysis Report which would have apprised the ASLB and the public of the. fault.
On the other hand, in the event of a trial, VEPCO would call as witnesses virtually the entire Office of Regulation of the rinC to tostify that they ware well awar:e of the fault and had detervined not to take any i-mediate action to h1,lt construction or to reopen the hearings. Indeed, VEPCO roints to the fact that the ASLB, on its own part, did not teize action upon being advised of the fault on August 3 but .:,aited until-the Director of, Regulation irsued its Order to Show Cause on October 17, 1973. These points all tend to defeat the Govern-rent's
- caae that the concealment and the filing of Anendriont 20 on
- July 31 had the natural tendency to affect the iRC's actions.
I'orcover, although not technically relevc.nt, Cardone and Coplan would testify that they did not' even read A.cndment 20 nor would the false statements contained thce.i_.ini have affected.
their review of the plant. Also, the ASL1, waas advised of the fault only three days after AnMI&Oent 20' was nailed iyhe' the Cardone affidavit wýas filed. Finally, as a ].eTa1 matter until August 29, 1973, when the 54Ol state certification was issued, the ASLB was not in a position to issue the corstruction permit anyway.
In essence theni, the possibility of siccessfil criminal prosecution of VFPCO under 13 U.S.C.. 1001. for conceal-ment of the fault from April through July and for filincq A-mendiment 20 on July 31, 1973 seems remote. This result is dictated largely by the actions of the' Corim.iission itoelf which
.in their best light can be characterized as ill-ennsidered and inept, and perhaps more realistically, as demonstrating a pervasive bias against the public scrutiny which a project of this importance deserves and is entitled to under federal laW.
Ilad it not 13een for the persistent efforts of lPrs. Allen and her group, it is entirely likely that the r*IC w.ould not even have convened a full adjudicatory hearing on the fault question or have assessed penalties against VEPCO. I decely regret that criminal sanctions may not be brought against VEPCO for mis-conduct in an area of. such major public imuportauce. as the civil
- construction of nuclear reactors.
Jaegers, Cathy From: Paul Gunter [paul@beyondnuclear.org]
Sent: Wednesday, November 02, 2011 10:13 PM To: Borchardt, Bill; Vietti-Cook, Annette Cc: paul@beyondnuclear.org; kevin@beyondnuclear.org; thomas@saprodani-associates.com; paxus.calta@gmail.com; shenwa@bcn.net; sprice@apvonline.org; jcruickshank4@gmail.com
Subject:
November 2, 2011 Supplemental Filing to North Anna Emergency Enforcement Petition of October 20, 2011 Attachments: anna_quake_2206_sup_1102201 ldoj.pdf; doj-north-anna-memo-19770511.pdf Mr. Borchardt, As we are still awaiting the assignment of a NRC Petition Manager, I am submitting to your attention. the supplement filing of Joint Petitioners in the matter of the October 20, 2011 Emergency Enforcement Petition (I OCFR2.206) to suspend the post earthquake restart and operation of the North Anna nuclear power station.
Please find attached our supplemental joint petition with new information and additional requested actions.
Also attached please find the referenced Department of Justice Memo of May 11, 1977.
Thank you, Paul Gunter, Director Reactor Oversight Project Beyond Nuclear 6930 Carroll Avenue Suite 400 Takoma Park, MD 20912 Tel. 301 270 2209 www.beyondnuclear.org 1