ML19301C497
| ML19301C497 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 06/10/1983 |
| From: | Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| Shared Package | |
| ML19301A041 | List:
|
| References | |
| FOIA-86-234 NUDOCS 8306290184 | |
| Download: ML19301C497 (3) | |
Text
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UNITED STATES y
i NUCLEAR REGULATORY COMMISSION
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W,....,' (t *c33 MEMORANDUM FOR:
William J. Dircks Executive Director for Operations Victor Stello, Jr., Deputy Executive Director FROM:
Regional Operations and Generic Requirements
SUBJECT:
HARTMAN ALLEGATIONS AND RELATED MATTERS In a' memorandum dated May 31, 1983 to you from Ccamissioner Gilinsky, certain information was requested concerning Tim Martin's statement at the May 24, 1983 Cc=ission briefing that, with regard to the Hartman allegations, records were falsified.
This memorandum transmits my response ta certain questions raised.
Rescense to Questiens 2(a) and 2(c):
I was unaware of Tim Martin's conclusion stated at the May 24, 1983 Co=ission meeting that "I can tell you for a fact that the records were falsified, that much we knew."
I am also uraware that this particular conclusion was conveyed to any other senior staff member or the Cc=ission.
However, the facts underlying this conclusion, derived from the partial investigatien of the Hartman allepations, were discussed with various senior staff members and the Cc=ission as described below In su =ary, I believe that senior members of ELD, IE, Recion I, NRR, DIA, the E00 and the Co =ission were aware in March / April 1980 that, although no final staff conclusions had been reached, leak rate test result: had likely been falsified prior to the March 28, 1979 accident at TMI-2 and that.this' particular Hartman allegation represented a potentially serious matter.
There were three basic allegations made by Mr. Hartman which were (1) results of reactor coolant surveillance leak rate tests were falsified, (2) emergency feedwater pump test criteria were altered and (3) the estkated control rod positions for attainment of criticality were recalculated in order to meet procedural requirements.
Folicwing Mr. Hartman's appearance on television, members"of IE, Region I and DIA initiated an investigation into these allegations On March 22, 1980.
The investigatcrs' initial results appeared to confirm Mr. Hartman's allegation that leak rate test results had been falsified prior to March 28, 1979.
These initial results carried with them a potential for criminal prosec~ution.
Accordingly, the Department of Justice (D0J) was notified, and,.at its cequest, the NRC investigation was suspended on April 28, 1950.
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- The Ccmissio.n, EDO, 01A, ELD, NRR, IE and Recien I were aware of the D0J referral of the allegation cencerning leak rate test falsification and the potential seriousness of Hartman allegation.
Due to the sensitivity of this matter, my discussions with various Ccmissioners and senior staff censisted of oral conversations and briefines.
General status of ongoing investiga-tions were reported at weekly CD0 staff meetings, sore of which included attendance by the Chair.an and representatives frem other Comission offices.
While infor.ation concerning the Hartman allegaticns was generally des-seminated orally, the Comission's understanding of this matter is reflected in a writing, specifically its Memorandum and Order of May 28, 1950 which referred to falsified test results and the ongoing Grand Jury investigation.
A copy of that Memcrandum and Order is enciesed.
See specifically page 6.
Further, this matter is specifically discussed in Supplement 1 of NUREG-Oe80, issued November 1980, and Supplement 2 cf NUREG-0ESO, issued March 1981. All of these documents received wide distributien thrcughout the agency.
Consequently, the Cc mission and various NRC senior staff had been generally aware, in the spring of 1980, of the Hartman allecatien regarding leak rates and that it had potential for criminal prosecution.
It appears that, in that time frame, at least one investicator (i.e., Mr. Martin) had reached more firm and specif': conclusions concerning the Hartman allecations.
Such conclusions may have been passed on to others and may have for ed part of the bases for the conclusion that some of the allecations had merit and that referral to D0J was appropriate.
However, to the extent that fim and specific cenclusiens were passed en, these conclusions were act adopted by senior staff members.
Such conclusiens were preliminary as they were based upon an incomplete and engoing investi-gation, which had been called to a halt.
Such conclusiens also had minimal safety significance at that time since TMI-1 was not likely to resume cperation in the near future.
The essential decisien at that point in time was the apprcpriateness of a referral to 00J and, for that purpose, it was not necessary to co beycnd the conclusions reached by senior staff that, based upon the investigation conducted thus far, the Hartman allegatiens appeared to have sufficient basis to warrant referral.
Rescense to Questiens 3 and 4:
As part of their effort to obtain background information with regard to the leak rate matter, the review team members ccnducting the review of the E&W-GpU lawsuit documents, except myself, met with Donalf Kirkpatrick of the NRC staff.
As I was already aware of the leak rate matter by virtue of my pcsition as Director of the Office of Inscettien and Enforcement in 19E0, I did not attend the meeting with Mr. Kirkpatrick.
Pr. Kirkpatrick was one of the original NRC investigators pursuing the Hartman allecaticns in 1980 price to referral to the Departrent of Justice. Mr. Kirkpatrick briefed the attending review team members en the results of the investigatich with which he was familiar.
The review team did not sceak to Tin Martin recarding the
. Hartman mattgr.
Consequently, the review team members were not apprised of any of Mr. Martin's views at that time.
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4 Deputy Executive Dire [ctor
\\1ctor Stel., Jr.
Regicnal Operations and Generic Requirements
Enclosure:
Menorandum and Order of May 28, 1980 o
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UNITED STATES 7
- '. ERICA NU: LEAR REGULATCRY COMMISSION
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IM l tw In the Patter of METROPOLITAN EDISON COMPANY D::ke t No. 50-320 (Three Mile Nuclear Station, Unit No. 2) s MEORANDLM A.ND CRDER On P.ay 2,1950, the NRC's Director of the Office of Inspectien and Enforce.ent issued subpoenas to six Metrep:11 tan Edisen e plcyees M calling upon them to appear and give testimony on May 20 and F.ay 21, l.CSD, concerning their i.newiedge of three particular events which e::urred on Pe. ch 28,197e, the first dey of the Three F.ile Island, Unit 2, at:ident.
Tne subjects at (e) the cr.lculated dose rate of 10 re=/hr in Goldsboro, Pennsy-issue w re:
1vania; (b) elevated in-core thern::cuple reEdings; and (c) the pressure spike in the containment vessel.
As explained in n:re detail below the subp:enas pere issued for the purpose of determining whether particular information bearing upon the seriousness of the then cngoing accident at TMI-2 sh:uld have been. reported to the Comission rcre pr:cptly, end what enforce ent action is appropriate under the cirtuestances.
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The perscns subpoented were Messrs. I'cG:vern, F'ehle r, Wright, Chwastyk, Kunder, and Zewe.
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2 We n;w have before us a motion to quash the subpoenas 2/ en the cround that the Commission's referral of 5:ne THI matters t the Department of Justice fer criminal proceedings precludes the Conr.ission from pursuing its civil investigation durino the pendency of the Crand Jury investigation currently underway in the Middle District of Pennsylvania.
It is also contended that the subpoenas are unduly burdensome in light of the r.any investigatiens of the IMI accicent which have already been c:nducted.
For the reasons dis:ussed below, we deny the rotion to gaash.
The ratters referred by the Commissien to the Department of Justice for criminal proceedings are separate and distinct from the subjects covered by the subpcenas issued by the Dire:ter of the Office cf Inspection and Enforcenent, and thct referral does not bar the Commission from pursuing its general health and safety and civil enforcement resp:nsibilities through issuante of the subpcenas here.
Fo reov er, wnile we are sensitive to the fact that the six persons under sub;:ena have previcusly been questioned, sete en several c: asions, regarding the TMI-2 at:Tdent, they are in fact kn:wied;Eable about the three areas ::vered by the subpoenas and those areas need to be clarified before the C0mmissi:n settles upon p ssible civil enforcement actions.
1.
Tne Direct:r's Subcoenas The Director's subpoenas were issued pursuant,t: Section 151(c) of the At ta.1: Energy A:t of 1954, as amence (22 U.S. C. 22Di(c)), to assist the C mmissien in determining whether three pie:es Of inferr.htibn bearing heavily l
Bv aereerent, the return date of the substenas has been thinged to P,5y 29
~and say 3D.
In agreeing to the new return dates : unsel for the revents specifically kept the motion to cuash as a live issue bef:re us and has not waived any right to centest me velidity of the subpoenas.
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'3 up:n the expected sericusness of the then eno:ing TFI-2 a: ident ought to have been ccre pra ptly reported to the C:mmission, and, if so, stat civil enferte-rent acti:n should be taken.
The investigation into these in:idents is a
- entinuation Of the NRC's ongoing investigatien into the events surrounding the a::ident at' Three Mile Island which resulted in a civil penalty assess ent against Metropolitan Edisen on D:tober 25, 1979.
In his Notice of Violati:n detailing the bases of the civil penalties, the Director cf IEE explained that additional enforcement action, includino further civil penalties and orders to suspend, codify, or revoke the cperatine license, were under review "with regard t: the reportability of several iters of informatien following the ense; ef the a::ident, including specifically the calculated dose rate of 10 40 R/hr in G:1dsboro, the elevated in-core thenny:ouple indications and the pressu_re spike in the centairment vessel." Letter, Victor Stello to Ec5ert Arnoid, dated D:t:ter 25, 1979.
The Director's decision to defer pressing further enfer: ament acti:n en th:3e iters pending further review and investigation was taken in resp:nse to the C:nmission's direction fciiowing an D:t ber 25 meeting a: which the Dirette triefed the Coenission en the enfertement actions he prep: sed to take against Metr:politan Edison Company.
The C:r. mission was of the view that the facts surr:Unding those three natters had not been established with sufficient clarity and shculd not be pursued by say Of a civil penalty tr license reve:ation actier at that time. 2/
The Cenmission instructed the Diyector to a ait ecmpletien cf
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F r example,10 CFR 20.403 imp:ses inmediate notifi:ation recuirements en Commissien licensees for certain specified events.
Under Section 234 cf the At:ric Energy Act, 42 U.S. C. 2232, the C::missi n is emp:wcred to assess civil penalties for violation of such Commissien repulations.
Ac di tienally. Section 185 cf the Atomic Energy Act, a2 U. S. C. 2225, tro-vides the Commission with license reve:atien powers for failure to cbserve C:mmission regulations.
4 the Report, of the President's C mmission en the Accident at Three Mile Island
(*Kemeny Report"), and of the Report cf the Commissi:n's Special Inquiry Gr:up
("R:g: vin Peport") to see what light those reports shed, before preteeting further.
After compietion of the Rogovin Report earlier this year, and the comple-tien cf a Supplemental Report on March 4,1930, lecking at the transfer cf information en the day of the accident in resp nse to a series cf questions raised by Congressman Udall, the Commission directed kts Office of Investiga-ti:n and Enforcement to complete its investication which had been held in a beya n:e.
See Mescranyum,, Chairman Ahearne to k'illiam J. Dir:ks, dtd.
Ma r:h 21, 1950.
The Commissien explained its plans to Congressman Udall as follows :
The Commissi:n has devoted substantial time to the cuestion of Vet Ed's conduct during the TMI-2 accident one year age.
Last fall the NRC assessed a civil penalty against Ket Ed.
However, one area was left open, that related to information trans fe r.
Last fall the C:mmission concluded that area should be examined after the Presidentiel Commission and the NRC Special Inquiry Group had completed their work.
Shortly before the Special Inquiry Group submitted its report, you sent us the first of two sets of cuestions relating to infor-ma tien transfer.
As a result, the Ccamissien centinued to defer the IEE review and asked the Special Inquiry Grcup to examine its records further for information pertaining to your questiens and to conduct such further incu.ry as it believed warranted.
Finally, Dr. Myers of your staf f has provided us with a review of this issue.
The Special Inquiry Group has rep rted en its reexamination in detail, indicating that it finds no direct evidence suegest-inn intentional withholding cf information but that it was not appr:priate for the Speciel Inquiry Group to reach c:n:1usions as to enfor:ement questions.... Me have concluded thct the appropriate action is to new dire:: I AE to c37ple te the-inves-ti ca tion.
This will focus upon the question Of whether a further civil penalty of Met Ed is justified in light of the facts pertaining to inforration transfer.
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5 The letter else noted that should the investigation suppest the possibility of criminal prosecution, the case w:uld be referred to the Department cf Astice.
In carrying cut the Co :.ission's dire:tive, the Director of IEE contacted a numb'er of Met Ed e ployees concerning their kn:wledge cf the pertinent events en the day cf the a :ident.
Six of the individuals centa:ted, fbph McGovern, Lyr.n Wright Brian Mehler, Joseph Chwastyk, George Kunder, and Willia = Ze,4, refused to be interviewed absent a subpoens.
The Direct:r's subpcenas followed.
Cnly two of the six individuals subpoenaed by the Director are among the fourteen prsens who have teen ordered to appear before the Grand Jury. II Eased on gst testirrJy and intervie.<s, the C =ission believes that each cf these si. individuals has direct knowledge relating to the trcnsfer cf infor-r.ation en March 28, 1979 and can centribute to establishing whether further enfor:ecent a: tion is apprepriate.
2.
Criminal F.eferral of Ha r*.: an A11eca tions Tne Grand Jury investigation new pending in the Middle District cf pennsyi.
vania was triggered by the Cer.tission's referral to the Department of hstice c-a d.011y separate and distinct ratter -- its investigati:n of allegations by Harold Hartman, a centrol ro;; cperator at T141-2, that ever a perind cf several c:nths crior to the TMI-2 accident, emp1:yees at TFl'2 r.ay have falsified tFe results of certain tests.
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These two. H; h M-Govern and Lynn L'ri ht, ar e te th c r tt:1 r:Om c;: erat 0r!
with no supervisory resp:nsibility.
Tr e oth e r f u r, V.essrs. Fehler, Chwastyk, Zewe and Kunder, are shift supervisers at 7".I.
Cn ".ay 27 nevent filed a sappie..ent to ib:icn to Cuash Sub; enas advisine us that hhn G.
Herbein, Vice-President, Fe r:palitan :. dis:n C:=pny, has also teen subpoenaed by the Grand Jury.
Tne list of documents called for by tha Herdein subpcena relate to the Hartman allegauens cescribed 1n' a an: are not a basis for granting the nation to quash.
5 Mr. Part an's allegatians first came to the C:missien's attenti:
22, 1979 ay during an interview with re-hers of the NRC C"fice of Inspe: t Enfor:ement team investigating the eccident at THI-2. At that tir.e
. in subse-
- q. rent interviews with NRC, and in a deposition by the Special taken Cet:ber 29, 1579, Mr. Fartr.an alleged that (1) results of rea:ter co surveillance leak rate tests Wre falsified, (2) esergency feeNate criteria vere altered, and (3) the estimated centro 1 > rod positions m.nt of t.riticality were re-nl:ulated in order to teet procedural recair rents.
The allegations, if true, could lead to criminal presecutien-On er about F. arch'22,1CEO NEC inspectors talked to Fr. Fartma h:,me, wnere he repeated the same allegaticns.
Ch Par:h 25, hTsC inspe: tors Martin, Christ:pher, and Sinclair taped an interview with Mr. Fart an and t:ck his sworn sta tement.
Tne NRC then took steps to verify fir.
Ha rtran 's allecatiens by examining existing documentatien and other records.
Daring the latter part cf March the NRC's Office of Mspectar and exchanged a few preliminary phone calls with the Cepart ent of hstice, ing thee cf the possibility cf a referral for criminal pr:secution Fint11y, en April 2,1530, representa tives cf the NEC ret with re-bers of the Ce; art.ent cf Astice to brief them on all of the infer =ation in its possession, in a:ccrdan:e with the Atomic Energy A::.
42 U.S.C. 2271.
At tha t.tfre, the NP.C brou ght its own investigation to a halt.
k'e understand free tryents' counsel who is also ceansel for th:se under subp:ena by the Grand Jury, that the Grand Jury has satpoentet thirteen present eroleyees and ene fcreer e pleyae cf 11tI-2.
Two of the six persens subscenaed-by our Director of ILE, Messrs. Wright and M:C:vern, are a ng these subpcenact '
by the Grand Jury.
We further understand from revants' counsel tha t Pr
7 has alretdy testified and has been excused by the Grand Jury.
A date fer Mr. K: Govern's Grand Jury appearance has n t yet bacn set.
3.
Lecal Analysis As the facts make clear, the Cc=issien's eng:ing investigation regarding the reporting of events that cecurred en the first day of the TMI-2 acc is separate and distinct from the Hart.an allegatier.s referred to the D cent of Astice for possible criminal prosecution.
Mr. Hartman's allegatiens go only to events pri:I to the accident en March 22, 1979.
He wa s n t even present at the TMI-2 sito en the day of the accident.
Given these facts there is no basis for requiring the Cc= mission to cecpletien of the Grand Jury investigatien before pro:eeding further on t C: mission's civil investigation.
Tne leading ca:e en cen:urrer.t criminal and civil investica tien is United Sta tes v. _L Sal'.s Natienal Bank, 43/ U.S. 295 3
(1972).
Tnere the Suprem. Court rJ1ed that a summens issued by the Internal Revenue Servi:e was entitl'ed to be enforced so long as it was issued faith pmuant to a legitimate Internal Revenue Service investigation, end prior to a re :c.nendation by the Service to the Department of Justice f r a criminel prosecution "which reasonably w:uld relate to the su: ject r.atter of the sur. cns. "
Id. at 318.
See also Cerden Sta te flational Bank v. United
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Sgtes, 507 F.2d 51
.d Cir. 19 3,.
inis test for the enforcebility of agency subpoenas reflected the policy inters.rts that the civil investigaticn should be allcwed to proceed so long as it was ret used ta broken the Justi:e
, Ce; art ent's right of criminal litigation discovery, er to infrince on the role of the grand jury as the principal toci of criminal et usatien.
It is cleer fr -
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8 what we have said earlier that the Director's sub;;enas plainly meet the standards established by the Suprere Court for the enforceability of yency subp:caas. E His investiration is being carried c.:t in g::d faith pursuant t
the Cenmissi:n's authority under Section 151 ef the Atomic Energy !.:t, and has the legitirate purposes cf establishing whether further civil enferce ent action should be taken in conne: tion with the T111-2 accident.
That ongoing
. investigation into the first day of the TPI-2 accident is not reasonably related to the Kartman allegations which the Cemissien has referred to the Depar. rent Of Justice for pessible crir.inal prosecution, and wtich triggered the Grand Jury investicatien now in pr:gress.
By alleving its Dire:ter of Inspe:tien and Enfer:ident to proceed with his investigation, the Cc=ission is neither infringing the accusat:ry role of the Grand Jury, nor acting as a funne' of information to expand the Justics Department's criminal dis:cvery rights.
Inde ed, if the Commissien's ::ngressionally c.endated auth:rity to investi-gate cattars
- aching the public health and safety is to te effectively ble:ked every tire a Grand Jury is convened en a catter inv:lving the same nuclear ; eve:
plant, the C:,. mission will be unduly hampered in carrying cut its r.andate e prete:t the public health and safety.
The Cerraission cepends upon its licenste:
rep rting ec:urately and prom tly to the NPC.
If we do n:t have an investiga:c:
and enfer:Ement me:hanism to ensure that reporting, the C:~lissicn will be unable to assure cc.pliance with its rules end regulations.
E If anything, the Commission's power to tenduct centurrent investigatinns is broader then that of the I'45 since the / ster.i Energy !.:t is "a regalato sche.ne which is virtually unic;ue in the degree to e.i:n brea~d resp:nsibii-ity is reposed in the adninisterinc agency, free cf cl se prescripti n in its charter as to how it shall pre:eed in achieving the statutory objet-tives."
Sie tel v. A:n-it Enerev Cn:.ission, 400 F.2d 77C (D.C. Cir.1r 3]
More:ver, en);re the IF.Si su poena power wnich is cirected at ceter.inine the tax liability of a particular persen and thus has " interrelated criminal and civil elements", Unit d Stat s v.
La Salk, sur-e, 437 U.S.
at 3i0, the Commi sion's subpoena p:ver is ruch nere peneral in s::pe.
42 U.S.C. 2201.
9 We also reject the sec:nd g-:und asserted for quashing the subpcenas, the c.laim that they are cveby burdenscce given the r.any investigations of t TV.!-2 ac-ident that have already taken place. While we are sensitive to the clair: that a person should net be subjected to rounds of questioning on the same v.tter, we. have satisfied ourselves that there are ic:>0rtant areas of cuestions, li=f ted in tire and subject matter to the specific areas covered by the subpoenas, which have not yet been answered and are legitimate cencerns of the Cc. mission in its enferiement responsibilities.
Finally, we note that enly one cf the six persens the Comission has subpoenaed is currently under subpoena by the Crand Jury, and his appearance date before that tody has not been set.
We do not believe the Director's subpoenas are unduly burdensome.
Tne retien to q.Jash the Dire: tor's subpoenas is denied.*
It is so ORDERED.
For the Cc=issio l} f/H
'W r
SA".UELc.CpILK Secreta ry of the-Comission g
Dated at Washington, D.C.
this 2Eth day of l'.a y 1930.
'Sec:1:n 20) of tne Energy Re:rganization Act, 42 U.S.C. :Eil provides that acti n of t L
C: mission shall be deter:nined by a "cajority vote of the members present." C: r.issi:ne Hendrie and Bradford were not present at the meeting at which this Order was approved, they been present at the meeting they would have voted with the rijerity.
A::ctdin;1y, fcr.a1 vote Of the Comission was 3-0 in fav:r of the Crder.
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