ML19301C498
| ML19301C498 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 06/29/1983 |
| From: | Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | Palladino N NRC COMMISSION (OCM) |
| Shared Package | |
| ML19301A041 | List:
|
| References | |
| FOIA-86-234 NUDOCS 8307150043 | |
| Download: ML19301C498 (9) | |
Text
UrHTED sT ATEs NUCLE AR REGULATORY COMMISSION
- ' g s. f j W ASHING T ON. D. C. 2C555 V ',7#. l 7
f JUN 2 91933 MEMORGDUli FOR:
Chairman Palledino Commissioner Gilinsky Comissioner Ahearne Comissioner Roberts Comissioner Asselstine William J. Dirchs Executive Director FROM:
for Operations REPORTABILITY OF GPU INVESTIGATION REPORT AND DEPOSITI
SUBJECT:
RE HARTMAN ALLEGATIONS This is in response to the Comission's request of April 8,1983, to determine whether the 1980 Faegre and Benson Report (Report) concerning the Hartman allegations and the 1982 depositions of Mr. Hartman should have been submitted in a more timely fashion to the Comission.
Backcround Harold W. Hartman, Jr. was a control room operator at TMI Unit ? until the March 28, 1979 accident.
In an interview conducted on May 22, 1979 by the Office of Inspection and Enforcement (IE), Mr. Hartman made allegations including that leak rate tests used to show compliance with TMI-2 Technical Specifications were manipulated in late 1978 and up until the accident with the knowledge of at least some supervisory personnel to avoid plant shutdown.
These allegations were further discussed in the Rogovin Special Inquiry) deposition of Hartman dated October 29, 1979 and in a WOR-TV (Channel 9 The NRC initiated an investigation ir.terview of Hartman on March ?4, 1980.
into this matter in March of 1980, discussed the limited results of that investigation with the Department of Justice (D0J) and in April of 1980 Since that time, DOJ has been halted its investigation at D0J's request.
investigating the matter via a Federal grand jury proceeding in Harrisburg,
~~
At a March 21, 1983 meeting between Mr. R. Arnold of GP'] and retbers of thE
! RC team reviewing the B&W-GPU trial court record, Mr. Arnold referred to a GPU investigation into the Hartman allegations and noted that GPU was considering giving that investigation report to DOJ.1/ The Report was subsequently forwarded by GPU to DOJ and through 00J to the NRC with the In early April recuest from D0J that NRC maintain the Report in confidence.
of 1983, the NRC received a copy of the Report directly from GPU with no The report is entitled "Results of Faegre & Benson Investigation of 1]
Allegations by Harold W. Hartman, Jr., Concerning Three Mile Island Unit 2," dated September 17, 1980, hereinafter "the Report."
CONTACT: James Lieberman, OELD
/\\
492-7495
/ *)
w P
(d 5 0 71 % 4 L The Comissioners The Report was discussed at the Comission limits placed upon its use.and the Staff was requested to examine whether or meeting of March 30, 1983 not any reporting requirements were violated by the submittal by GPU of its Report in 1983, nearly three years af ter the Report had been finalized.
The Staf f was also requested to determine whether the depositions of Hartman taken in the B&W-GPU lawsuit on July 16 and August 18, 1982 should have been submitted to the NRC.
The depositions were received by the Staff on March 21, 1983 following a specific request to GPU.
The Nature of the Report and Depositions i
The Report sets forth the results of an investigation into the allegat ons made by Hartman bated primarily upon plant records and technical data.
The Report limits its inquiry as follows:
The reader should understand clearly the limitations of this Report.
We have not hed access to those Metropolitan Edison employees with first-hand knowledge of the substance of Hartman's allegations.
Virtually all TMI Unit 2 control room operators, foremen and supervisory personnel accepted the company's offer of legal counsel.
In light of the pending federal grand jury proceeding, their counsel understandably declined to allow us to interview those employees during this investigation.
They may be able to answer questions which this Report necessarily leaves unresolved.
Becauie of our inability to interview key employees, this investigation has been based primarily upon our review and analysis of plant records and other technical We also have relied upon limited interviewing data.
of other plant employees. We have not been able to We pursue every possible line of inquiry or lead.
have tried to indicate throughout the Report those areas which we have not pursued and those questions which remain open.
(Report, Vol. 1, pp. 12-13.)
The Report is primarily an investigation and analysis of plant records anc other technical data'related to ways the leak rate deta could have been While the Hartman allegations are analyzed technically, and manipulated.
a further extensive voluntary statement from Hartman was taken to aid the investigation, 2/ the Report does not evaluate the role or knowledge of any other individuaTs in the acts alleged.
Voluntary Statements of Harold W. Hartman dated April 27 and 29,1980.
22, 1979 interview of Hartman 2/
These statements were in addition to the Maydeposition of Hartnan taken by
~~
29, 1979 conducted by I&E, the October 24, 1980 WOR-TV Regovin Special Inquiry, and the transcript of the Marchi
/
The Ccr.missicr.ers Indeed, the Report concludes:
Apart from Hartman's own statements, we have no basis for evaluatir.g his allegation that control room oper-ators, foremen and supervisors were subject to undue pressure to obtain " good" leak rate test results. The answer to that charge rests with control room personnel whom we did not interview for various reasons stated earlier.
(Report, Vol. 1, p. 36.)
The Repurt does not resolve the question of management integrity. 3/
And while the Report does contain extensive technical analyses, the Staff had available to it the underlying data from which those analyses were made.
The Staff did some analysis in developing the civil penalty assessed against Metropolitan Edison Company for violations of TMI-2 Technical Specifications associated with leak rates.
See NUREG-0600.
Further extensive analysis had been performed by the NRC Hartman investigation team in March-April 1980.
The Hartman depositions explored a number of areas in addition to the Hartman allegations set out above.
The Report and depositions do not add substantially ?o the information of which the NRC was aware at the time those documents wert. prepared.
Analysis of Reportability The substance of the Hartman allegations were known to the NRC shortly after the TMI-2 accident, nearly 1-1/2 years prior to the completion of the Report.
No new allegations are raised in either the Report or the Hartman depositions.
The Report focuses primarily upon a technical analysis of the allegations.
The substance of the Hartman allegations remain virtually unchanged as a consequence of the Report. The Report does not-resolve the Hartman al-legations.
With respect to reportability, three separate approaches which could call for reportability have been identified.
--3/
As part of the Staff's revalidation effort in this area, the Staff concluded:
Based on the inspection team review and resulting Report, the staff concludes that the issues raised by the Hartman allegations should not by themselves be a bar to restart.
However, because of'eli the open issues identified above which were not consicired in the revalidation program and Report, the staff can &aw no conclusion regarding management integrity at this time.
,M Memorandum for the Comissioners from the EDO dated May 19, 1983.
/
The Cormissioners 1.
Specific License Conditions or Comissien Regulations The TMI-2 facility license and its associated Technical Specifications and the Comission's regulations impose specific notification requirements upon the licensee for certain catecorics of events.
It may well be that the licensee did violate such reporting requirements if the incidents alleged by Hartman did in f act occur. However, the reporting violation would have been the fa' lure to report the incidents which were, the subject of the Report and the depositions at issue within the time allowed for reporting the incidents and not the failure to provide the Report and the depositions. The creation of the documents themselves do not appear to give rise to any new reporting obligation under the plant technical specifications or a specific Comission regulation.
2.
Reporting Obligations Under Section 186 Section 186 of the Atomic Energy Act of 1954, as amended, imposes a reporting requirement in a sense as it authorizes revocation of a license for any material false statement in the application or any statement of fact required under Section 182.
In its VEPCO decision, the Comission held that an omission (i.e., a failure to submit information) could constitute a material false statement. 4/
Materiality of an omission or statement depends on "the context in which infor-mation appears and the stage of the licensing process involved" and "whether information has a natural tendency or capability to influence a reasonable VEPCO, 4 NRC at 491. Put another way, " materiality 6gency expert."
shocid be judged by whether a reasonable staff member should consider the information in question in doing his job."
Id. at 486.
If the Staff had Virginia Electric and Power Company (North Anna Power Station, 4/
~
Units 1 and 2), CLI-76-22, 4 NRC 480 (1976), aff'd, 571 F.2d 1289 (4th Cir.1978).
In VEPCO, the Comission held that some omissions were reachable under section 186.
It reserved judgment,as to whether all omissions could,be reached:
Whether or not enforcement consequences for less obvious or central omissions should await clarifying regulations, silence regarding issues of major importance to licensing decisions is readily reached under the statutory phrase " material false state-ment"....By reading material false staterents to encompass omissiens of material data, we do not suggest that unless all information, however trivial, is forwarded to the agency, the applicant will be subject to civil penalties.
An omission must be material to the licensing process to bring section 186 into play.
Id. at 489, 491.
/
The Ccmissicr.ers not been aware of the Hartman allegations and had not possessed the information it had concerning 6he allegations, the infomation contained in the Report and depositions would clearly have been of interest to the Staff and have had a natural tendency and capability to influence the Staff in formulating its positions in the restart matter. Hewever, as indicated above, the Staff had substantial information concerning the Hartman al-legations.
The Report and depositions do not expand the scope of the al-legations, resolve any of the allegations, or add substantially to the information of which the NRC was aware. The Staff was also aware in 1980 that GPU initiated an investigation of the Hartman alleptions, but did not seek a copy of the investigation report.
He conclude that the material omitted here does not meet the threshhold standard of having the ability to influence the " reasonable agency expert."
Therefore, there is insuf.ficient materiality to support a material false statement.SJ 3.
Duty to Report to Licensing Boards Although the Staff possess'ed substantial information concerning the Hartman matter, the Licensing Board's knowledge was limited to the SER's. 6/ The issue remains whether the licensee violated its board notification obli-gations.7]
-5/
The present case where the Staff has the substance of the infor-mation at issue is unlike VEPC0 where neither the Staff nor the Licensing Board possessed the material.
Utvertheless, an argument might be made that materiality should be judged on the basis of the material omitted in isolation of any other material the Staff might possess. This would prevent a licensee from benefiting when it failed to provide information it would otherwise be obligated to provide, ort the basis that by chance the Staff already had the information.
However, this latter circumstance does not appear to be the case here. The investigators preparing the Report had copies of the IE Hartman interview and the Rogovin deposition (Report at 1) and had notes of IE interviews prepared by-licensee representatives (Report at 8-12).
In addition Supplements 1 and 2 of NUREG-0680, the Staff's SER, briefly addressed the Hartman allegations.
The licensee clearly had indications of the material the Staff possessed. However, the reasons for the licensee's actions are not clear.
6_/
On May 4, 1983, GPU provided the Report to the Appeal Board.
7/
Board notifications are required even if the Staff has r~e'ceived the material.
The Appeal Board has said that "[t]he obligation to provide information to adjudicator.y. bodies requires that information be submitted to them directly." Tennessee Valley Authority (Brown Ferr Nuclear Plant, Units 1, 2 and 3), ALAB-677,15 NRC 1387,1394 (1
/
The Comissicners Parties to Commission proceedings have an " absolute obligation to alert adjudicatory bodies directly regarding...new i.; formation that is relevant and material to the matters being adjudicated....* S/ Consequently, if the subject matter of the Report or the Hartman dep3sitiur.. were considered to be new information that is relevant and material to matters being adjudicated in the TMI-1 Restart Proceeding, the licensee may have violated its notification obligations to the Licensing Board presiding over that proceeding.
Supplement 1 to the Staff SER 9/ discussed the leak rate allegations in regard to issue 10. 10/ Without mentioning Hartman by name, the SER stated:
During interviews with the NRC, the SIG, and the media, allegations were made by a former TMI operator concerning the implementation of the RCS leakage procedure and improper data collection. The allegations raised concerns regarding the principles of compliance with operating procedures and management philosophy and actions.
Supplement 2 to the SER stated that the leak rate information was included in the first supplement beTat.se the investigation of the matter could turn The up information which is relevant to past management practices. 11/
Supplement further stated that the leak rate matter was only oflistorical significance in light of the licensee's clear management policies and based upon the Staff's current knowledge. H/ The Board made a brief reference 8]
Id.
_9]
NUREG-0680, TMI-1 Restart, 37 (Nov.1980).
M/
Issue 10 involved:
Whether the actions of Metropolitan Edis'on's corporate or plant management (or any part or individual member thereof) in connection with the accident at Unit 2 reveal deficiencies in the corporate or plant management that must be corrected before Unit I can be operated safely.
CLI-80-5, 11 NRC 408, 409 (1980).
,11/ NUREG-0680, Supplement 2, at 9 (March 1981).
Id. at 10. The Staff hus' stated to the Cornission in the *NRC Staff's 12/
T6iments on the Analysis of GPU v. B&W Transcript" (April 18,1983),
that the wording of this conclusion in Supplement 2 "sh'culd have been more precisely stated to be that the actions taken by the Licensee in light of the Hartman allegations were adequate to address the concerns identified."
/
The tcmissioners to this subject in its August 1981 decision. M/ Given the reference to the leak rate matter in the Staff's SERs and the caveat in the Licensing Board's August 1981 decision, the Hartman alle2ations are relevant to the management issue.
A number of factors might militate against making a board notification. As indicated above, the Staff discussed the leak rate allegations in Supplements 1 and 2 of the SER (NUREG-0680).
In Supplement 2, at 9-10, the Staff concluded that there appeared to be no direct connection between the leak rate matter and the Unit 2 accident.
None of the parties challenged the Staff's con-clusion. The essential thrust of the Hartman allegations, i.e., the possible falsification of leak rate data, was known by the Board and the parties.
They were also aware that the allegations had been referred to DOJ and D3J had requested the NRC to suspend its investigative effort of the allegations pending conclusion of the DOJ investigation. Another consideration is the evolving nature of the management integrity issue with the attendant uncertainty as to when the issue encompassed the Hartman allcgations.
Nonetheless, any uncertaint'y regarding board notification should have been resolved in favor of notification.14/ Thus, we conclude that the licensee should have made a board notificati5i. The Staff recognizes that in reaching
-13/ Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), LBP-81-32,14 NRC 381, 557-58 (1981). Specifically, the Board quoted from NUREG-0680, Supplement 2, and concluded:
Due to our limited information and given the posture of an ongoing DOJ investigation, we have to basis to conclude that restart should not be permitted until the DOJ investigation is complete.
~
Id. at 557. TheLicensingBoardfurtherconcludedthat"[s]ubject to' this [ leak rate) matter," and exccpt as identified in the detailed findings, there were not deficiencies in GPU management arising from the Board's inquiry into GPU's response to the Unit 2 accident which have not been corrected and which must be corrected before there is reasonable assurance that Unit I can be operated safely.
14/ The Appeal Board has stated that "[a]ny uncertainty regarding the relevancy and materiality of new information should be decided by the presiding board." Duke Power Co. (McGuire Nuclear Station, Units 1 and 2), ALAB-143, 6 AEC 623, 625 n.15 (1973).
/
/
The Cor-issioners this conclusion it might also be subject to criticism for not providing additional information on the Hartman matter. The Staff did not do so in order to avoid any possible interference with the DOJ investigation.
In this cenaection it should be recognized that there is an inherent conflict between the board notification obligation and the protection of information developed duringanongoinginvestigation.15/
pgte0Wi!F.m !.Dircks William J. Dircks Executive Director for Operations cc:
SECY OGC OPE
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I 15/ Another example of this inherent conflict follows. The Commission has before it the results of an inve stigation of the VV and Miller cheating incident together with the views of the Staff on thE appropriateness Cf any enforcement action. Given these circumstances, these documents have not been provided to the Appeal Board v:Sich is reviewing the cheat-ing issue.
Y
=
. ~ =
e e
ENCLOSURE 9 e d
k UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:
Gary J.
Edles, Chairman Dr. John H. Buck Christine N.
Kohl
)
In the Matter of
)
- )
METROPOLITAN EDISON COMPANY, ET AL. )
Docket No. 50-280-SP
)
(Management Phase)
(Three Mile Island Nuclear Station, )
Unit No. 1)
)
)
Marjorie M. Aamodt and Norman O.
Aamodt, Coatesville, Pennsylvania, intervenors pro se.
Louise Bradford and Joanne Doroshow, Harrisburg, Pennsylvania, for intervenor Three Mile Island Alert.
Ellyn R.
Weiss, Washington, D.C.,
for intervenor Union of Concerned Scientists.
Douglas R.
Blazey and Robert W.
Adler, Harrisburg, Pennsylvania, for the Commonwealth of Pennsylvania.
Ernest L. B'l Ake,' 5b., 'aIEd' 5eorce F. Tr5~ bridge,
~
~
w Washington, D.C.,
for licensee Metropolitan Edison Company.
Jack R.
Goldberg and Mary E. Wagner for the Nuclear Regulatory Commission staff.
- On August 13, 1981, the Commission authorized the issuance of an amendment trcnsferring the license to operate.
TMI-) from Metropolitan Edison Cc=pany to GPU Nuclear Corporation.
See CLI-81-l'i, 14 NRC 299.
Because no one has asked for a substitution of parties, we will continue to show Metropolitan Edison in the caption, consistent with all prior decisions and orders in this proceeding.
s 2
MEMORANDUM AND ORDER
+
August 31, 1983 (ALAB-738)
Intervenors Marjorie M. Aamodt and Norman O. Aamodt and Three Mile Island Alert (TMIA) collectively have filed three motions to reopen the record in the management phase of this proceeding.
They base their motions on various reports and other information that assertedly have come to light recently and bear upon the Licensing Board's partial initial decisions concerning management competence and integrity, which are now before us on appeal.
See LEP-81-32, 14 NRC 381 (1981), and LBP-82-56, 16 NRC 281 (1982).
Intervenor Union of Concerned Scientists and the Commonwealth of Pennsylvania, responding to our request for additional comments on certain matters ostensibly relating to the
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motions, generally support reopening.
Licensee opposes each of the motions.
The NRC staff opposes some of the relief requested but asks us to defer ruling on other issues and to await the completion of several ongoing staff inquiries.
For the rea. cons set forth below, ve grant the motions insofar as they seek reopening for further hearing on the so-called Hartman allegations of falsification of leak rate data.
In all other respects, the motions are denied.
a
3 I.
The criteria that a motion to reopen must satisfy have evolved over the last decade into a well-defined tripartite test.
(1) Is the rotion timely?
(2) Does it address significant.' safety (or environmental) issues? (3)
F.ight a different result have been reached had the newly proffered material been considered initially?
Pacific Gas and Electric Co.
(Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALA3-598, 11 NEC 876, 879 (1980).
See Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No. 1), AIA3-4 62, 7 NRC 320, 338 (1978);
Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973).
Although the basic standard is settled, applying it to a particular notion to reopen often proves a disproportionately greater task.
Thus, we have characterized the burden of such a motion's proponent as a " heavy" one.
Wolf Creek, supra, 7 NRC at 338.
II.
The Aamodts' first motion to reopen concerns information revealed in Scard Notification EN-62-84 '(August 17, 1982).I Attached to the Board Notification was an 1 The Aamodts filed this motion with the Licensing Board.
In ALAS-699, 16 NRC 1324 (1982), we agreed with that Board th:t it lacked jurisdiction over the motion and that it should be referred to us.
4 inspection report that discussed the discovery in May 1982
.by l'icensee's Radiological Aezessor of several unattended radiation werker examinauions and their answer keys.
Although this apparently occurred on two occasions over a three-day period, the NRC staff inspector concluded that licensee's corrective actions were adequate and that it appeared to be an isolated incident.
Inspection Report No.
50-289/82-07 (July 1, 1982) at 17.
The Aamodts suggest, however, that this matter raises questions about licensee's training program, warranting further hearing.
They also assert that the " withholding" of infornation about this incident for over three conths casts doubt on the integrity of both licensee's canagenent and the NRC staff.
~
In their second nction to reopen, the Aamodts li t five categories of assertedly new and significant evidence.
This information came to light, according to the Aamodts, in the now-settled civil"lawscit-brought"as a result of the accident at TMI-2 by licensee's parent corporation against the manufacturer of the TMI reactors, Sabcock & Wilcox (B&W).
See General Public Utilities Corp.
v.
The Babcock &
Wilcox Co., No. 80-CIV-1683 (S.D.N.Y.
filed March 25',
1980)
(hereinaf ter *B&W trial").2 2
The Aamodts' notion to reopen is centained within their connents to the Comnission on the adequacy of the (Footnote Continued) o O
y a
5 The first such information is the testimony at the B&W trial of Harold W.
Hartman, Jr., a former TMI-2 control room operatar.
Hartman testified that the technical specification for unidentified leak rates at that facility, one gallon per minute (gp=), was exceel i and the corresponding data were falsified for a period of several months before the accident.
The Aamodts contend that it is not unlikely that licensee's management (specifically Robert Arnold, now president of GPU Nuclear Corporation, the new entity respensible for TMI) knew of this matter.
In their view, the Hartman testimony shows a lack of management integrity and thus could have provided the Licensing Board with the evidence necessary to find management involverent in tre instances of cheating on operator license examinations already explored at hearing.
See LBP-82-56, supra, 16 NRC at 292-93.
The second piece of new information, by-the Aamodts' account, is a 1978 in-house audit of TMI management.
Among the deficiencies noted was training, an area contributing to the accident and explored at the restart hearing.
Third is the B&W trial court's "[c]hastisement of Robert Arnold for (Footnote Continued) staff review of the B&W trial record.
The Commission referred the motion to reopen to us for disposition by Order of May 5, 1983 (unpublished), at 3-4.
Accordingly, we address here only those arguments directed to the motion to reopen for further hearing on the five categories of
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information specified.
O
6
[m)is' leading [t)estimony."
Aamodt
. Motions to Reepen ikpril16, 1983) at 9.
The Aamodrs contend that Arnold displayed a similar lack of forthrightness at the hearing on the cheating incidents and that the Licensing Board erred in not giving it greater weight.
In their opinion, the new evidence --
i.e.,
the B&W trial court's perception of Arnold's candor -- supports their position on management involvement in cheating.
The Aamodts' fourth category of new and significant information concerns evidence presented at the B&W trial show;ng B&W's superic: technical resources.
In short, this "new evidence" assertedly supports the Aamodts' apparent belief that B&W, rather than licensee and the NRC, $hould be principally responsible for training and administering ope:
" :aminations, respectively.
Finally, according to ts, new evidence gleaned from the B&W trial i
.. c _ ;t casts doubt on the Licensing Board's findings concerning operator ability to respond in an emergency.
- See, e.g.,
LBP-81-32, surra, 14 NRC at 474-75.
The Aamodts urge the creation of a backup decision center, staffed by B&W experts and ecuipped with the capability to tap'into all significant control rcom instrumentation.
TMIA's motion to reopen is based primarily on the staff's recent action to " revalidate" its position on licensee's management integrity.
See pp. 11-12, infra.
As part of that effort, the staff prepared Inspection Report
7 ho. 50-289/83-10 (May 17, 1983), which covers a number of areas at issue in the management phase of this proceeding.
Included is a discussion of the Eartman allegations, based on a review of job titles (not personal interviews) to determine if any _ndividuals who might have been involved in falsification of TMI-2 leak rate data are now involved in TMI-1 management.
In a May 19, 1983, memorandum to the Commission, the NRC's Executive Director for Operations, William J.
Dircks, identified the following five matters that the revalidation effort and Inspection Report did not address and thus are still censidered "open issues":
(1) the veracity of the Hartman allegations; (2) statements in the B&W trial transcript; (3) allegations by two meb employed in the TMI-2 cleanup operation (Richard Parks and Lawrence King) about retaliation against "whistleblowers";
(4) concerns raised by two 1983 management audits by outside consultants (the BETA and RHR Reports) ; 3_a_nd_.
(5) the timeliness of licensee's submission of the BETA and RHR Reports and other documents to the Commission and this 3 See Basic Energy Technology Associates, I,n c.,
"A Review of Current and Projected Expenditures and Manpower Utilization for GPU Nuclear Corporation" (February 28, 1983)
("3 ETA Report") ;
P.
D'Arcy & J.
Sauer, " Priority Concerns of Licensed I;uclear Operators at TMI and Oyster Creek and Suggested Action Steps" (March 15, 1983) ("RHR Report").
f
8 Board, and its implications for management integrity.
TMIA seeks reopening to explore each of these five issues.
TMIA also specifies several more areas warranting examination:
the credibi.1.ity of Inspection Report No.
50-289/83-10, especially its treatment of the Hartman allegations and the EbTA and RER Reports; the credibility of an earlier staff review of the B&W trial record, headed by Victor Stello; and allegations by other whistleblowers besides Parks and King, and the significance of a Department of Labor finding of menagement retaliation against Parks.5 Clearly though, TMIA's chief concern is that the BETA and RHR reports have seriously undermined earlier testimony on a number of areas related to overall management compefence and integrity (such as maintenance, training, and operator -
attitudes).
4 TMIA also supports the Aamodts' second motion _to reopen.
5 TMIA also mentions Board Notification BN-83-71 (May 18, 1983) concerning alleged falsification of operator training records in 1977.
In supplementary comments, the Aamodts as well refer to this matter.
Aamodt Response to Appeal Board Order of June 16, 1983 (July 2, 1983) at 12-13.
The NRC's Office of Investigations recently concluded its incuiry into the matter, finding no support for.,the allegations.
See Board Notification BN-83-71A (June 27, 1983).
Seither TMIA nor the Aamodts specifically seek reopening on this point.or provide additional material information beyond that revealed in BN-83-71A.
l i
9 The Hartman allegations of falsified leak rate data, raised by both TMIA and the Aamodts, unquestionably constitute the most disturbing basis on which the requests to recpen are premised.
We turn to this matter first.
A.
1.
A brief chroEology of the events surrounding the Hartman allegations themselves is in order.
Allegations of falsification of leak rate data first came to the NRC's attention during a May 22, 1979, interview with Hartr.an conducted by staff frcm the Office of Inspection and Enforcement who were investigating the TMI-2. accident ("I&E Interview").
In a deposition taken on October 29, 1979, by Harold L.
Ornstein on behalf of the Rogm'in Special Inquiry Group, Hartman reiterated his claims ("Ornstein Deposition").
In March 1980 a New York City television station aired a story including portions of its own similar i
interview with Hartman.
At about the same time, I&E 1
interviewed Hartman again and examined existing documentation in an effort to verify the charges.
See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 2), CLI-80-22, 11 NRC 724, 728 (1980).
On' April 2, 1980, the matter was referred to the U.S. Department of Justice (DOJ) for criminal investigation and the NRC halted its own investigation.
Ibid.
Two weeks later licensee hired a Minneapolis law firm to conduct an inquiry.
The e
W 4
4
10 latter submitted its report to licensee in September 1980
- ("Faegre & Benson Report"). 6 As part of its evidentiary presentation before the Licensing Board, the staff prepared a Safety Evaluation Report (SER).
Two supplements to the SER, issued in November 1980 and March 1981, each made a passing reference to the allegations of falsified leak rate data, noting the pending DOJ investigation and suspension of any further NRC inquiry.
No other evidence on the matter was adduced at the hearing.
Consequently, in LBP-81-32 the Licensing Board noted its limited information and made an overall finding of no deficiencies in corporate management, subject to the DOJ investigation.
14 NRC at 557-58.
Inthemeantime[the Justice Department had convened two successive federal Grand Juries to investigate the Hartman allegations.
The second such investigation is still pending.
Aware 'f th'e^theniongoTHg~B W trial ~isb'e~p.
4, suora),
o NRC Chairman Palladino in December 1982 requested the staff to review that trial record for information that could affect the Commission's restart decision.
On January 24, 1983, before all of the evidence for both sides had been presented, the parties to that action reached a settlement.
The staff, however, completed its review of the nonetheless 6 Also known as the "Rockwell Report."
11 substantial trial transcript and exhibits and submitted a report to the Ccmmission on March 28, 1983 ("Stello Report").
The report concluded that the B&W trial record did not add s.'bstantially to the information already known about the Hartman allegations.
Stello Report at 17-18.
But in subsequent com=ents to the Commission, the staff indicated it was " revalidating" its position on the management integrity issue -- having previously found no deficiencies in that regard -- at least in part because of the Hartman allegations.
NRC Staff's Comments on the Analysis of GPU v. B&W Transcript (April 18, 1983) at 4.
On May 4, 1983, at the request of staff counsel, licensee submitted the 1980 Faegre & Benson Report to us and.~the, other parties in this proceeding.
In the meantime, as part
~
of the r~ validation process, the staff co pleted Inspection Repor. T 50-289/83-10, but listed the veracity of the Hartman allegations among-the~ *open issues"-in the May 19 Dircks memorandum.
See p. 7, supra.
At a May 24, 1983, Commission briefing on the staff revalidation, Tim Martin, Director, Division of Engineering and Technical Programs, g4*
7 Basically,.the part of the B&W trial transcript issue consists dealing with the Hartman allegations here at of portions of a deposition of Hartman taken on July 16, 1982, and entered into the B&W record at Tr. 7008-95.
12 NRC kegion I~
(and a former NRC inspector who interviewed hartmaninMarch1980), stated:
I can tell you for a fact that the records were falsified, that much we knew.
What caused those records to be falsified, what was the motivation for those records to be falsified, that I can't tell you because I was not allowed to get far enough into it to find out.
C.Tr. 14.0 It is apparent from th;s chronology that the entire Hartman matter essentially lay dormant, for purposes of this proceeding, from April 1980, when it was referred to the Justice Department, until relatively recently, when examination of the B&W trial record led to renewed interest.
-2.
The allegations themselves can be summarized fairly briefly.9 The technical specifications for TMI-2 establish a maximum rate of one gpm for unidentified leakage from the reactor coolant system.
Tests to measure leakage are to be taken every_72 hours...If_the..specified ra.te. is exceeded and cannot be limited within four hours, the plant must be 8 ~"C.Tr."
is used to denote the transcript of the Commission's May 24 meeting. -
9 The source of this summary is the Hartman deposition as read into the B&W trial record at Tr. 7008-95.
See note 7,
supra.
This is the principal evidence concerning falsification of leak rate data upon which both TMIA and the Aamodts rely in support of their motions to reopen.
Other documents provided by the staff and licensee, however, are consistent with this account of the circumstances surrounding the charges.
- See, e.g.,
I&E Interview; Orne'.ein Deposition; Faegre & Benson Report, Vols. One and Four.
W s
13 placed in " Hot Standby" it: the next six hours and " Cold
.Shutdown" in the following 20 hours2.314815e-4 days <br />0.00556 hours <br />3.306878e-5 weeks <br />7.61e-6 months <br />.
For several months before the March 1979 TMI-2 accident, Hartman states that it was difficult to get a " good" (i.e., less than one gpm) leak rate at the facility.
This coincided with leaking safety.
valves on the pressurizer, as well as substantial oscillatiens in various plant parameters.
Hartman claims that, pursuant to directions from a shift supervisor and a shift foreman, he and at least one other identified control room operator on several occasions redid leakage tests until they obtained a good rate.
This involved the addition of hydrogen or water to the system, in small increments and without recording this action in the control room logsf.
Hartman says he assumed other unnamed operators and supervisors took similar action because they had talked to him about it.
He and others threw out bad test results, with the knowledge of supervisory personnel.
Hartman asserts further that he discussed thw problem of bad leak i
rate data with at least one supervisc r, who advised him that We note that in a letter and Notice of Violation 10 1979, the staff concluded that from Mar issued October 25, 1979, unidentified leakage at TMI-2 remained above 22-28, one gpm and the plant was not placed in " Cold Shutdown."
p 10.
The fine for this technical Notice of Violation at l'
specification violatiqn was included in a total fine of for numercus other violations relating to the TMI-2 aI S155,000 Licensee did not challenge the leak rate finding, accident.
s v.
b E,
(
ri
14 people were working on it, including modifying the computer v
program used for the data calculations.
Consequently, Hartman assumed that personnel on other shift: snd management were aware of his concerns.
3.
In addressing the three-prong Diablo Canyon standard for reopening (see p. 3, suora), licensee argues only that the Aamodts' motion is not timely.11 Licensee states that Hartman's allegations are not new, having been broadcast on a New York televiFion station in March 1980 and publicized in Harrisburg newspapers at about the same time.
Licensee also notes that, in December 1981 at the reopened hearing on cheating, Mrs. Aamodt said that she had, read the I&E interview with Hartman.
See Tr. 26,346-47.
- Furthfr, licensee argues that the staff's SER, Supplement No. 1 (November 1980), "certainly provided sufficient information to allow the Aamodts to pursue the matter at that time."
Licensee's Reply to Aamodts' Motion (May 9, 1983) at 4.
Consequently, in licensee's view, "[t]he Aamodts are inexcusably late in seeking to reopen the record on the basis of the Hartman allegations and have provided no new 11 Licensee did not respond to TM7.A's moti-on to reopen insofar as it concerns the Hartman allegations.
Licensee contends that TMIA's motion actually discusses only the BETA and RHR reports and, hence, licensee has limited its response accordingly.
Licensee's Response to TMIA Motion to Reopen the Record (June 7, 1983) at 3.
M e
15 info {mationnotavailablethroughoutthecourseofthe restart proceeding."
Id. at 6.
Licensee is silent as to whether the Hartman allegations address a significant safety issue and whether the Licensing Board might have reached a different result had this matter been considered initially.
The staff's position is somewhat curious.
First it argues, as does licensee, that the Hartman allegations are not new and thus the Aamodts' motion is not timely.
NRC Staff's Answer to Aamodt's Motion (May 13, 1983) at 4, 7.
The staff also contends that this is not a significant issae because changes in personnel at TMI-l are such that the leak rate problems alleged to have occurred at TMI-2 are,unlikely to occur at TMI-1.
Id. at 7.
See Inspection Report No.
50-289/83-10 at 10-6.
Then the staff states that, although the Hartman allegatiers themselves provide no basis for changing any aspect of any previously-stated. Staff. position-on management issues, further development of the open issues identified in the Revalidation Memorandum [(one of which is the veracity of the Hartman allegations))
is required before the Staff can conclude whether or not one er more of those matters will provide a basis for a change in the Staff's position on any of the management-related issues in this proceeding.
NRC Staff's Answer to TMIA Motion to Reopen (June 13, 1983) at 6.
The staff continues:
"[the Hartman allegations) could affect the resolution of the management is' sues involving the technical and character qualifications of Licensee's management, operations and technical staff."
Id.
instead of reopening the record now to achieve at 7.
But
16 tha't resolution, the staff urges us to defer ruling on TMIA's motion "until further development of the open issues permits a sound determination of their significance."
Id.
at 11.
a.
We reject licensee's and the staff's arguments that the motions to reopen on the Hartman allegations could have been filed earlier and thus are untimely.
It is true that the allegations, first made in the May 1979 I&E Interview, are not "new."
But even assuming that intervenors had knowledge of Hartman's claims then or at any time before the Licensing Board issueil LEP-81-32,12 the staff, in rather cryptic comments in its November 1980 and March 1981 supplements to the SER, clearly discouraged any other party from pursuing this at the hearing below.
Supplement No. 1 stated that the NRC's initial inquiry into the matter of improper collection of leak rate data was " suspended" so as to interfere with pending Justice Department and Grand not 12 The basis for such an assumption is not evident.
Licensee points to a March 1980 television broadcast'in New York City and unspecified Harrisburg newspaper accounts of the Hartman allegations.
We are unwilling to find on either basis that intervenors or any other member of the community surrounding TMI was put on notice of the allegations.
We also note that neither the I&E Interview nor any other pertinent document was provided to the Licensing Board and, in fact, did not come to our attention until licensee submitted the Faegre & Benson Report to us several months ago.
e
.9
.ma
17 Jury proceedings.
As a result, the staff could " draw no conclusions on this item" until the DOJ investigation was ccmpleted.
SER, Supp. No. 1 (Staf f Exhibit 4), at 37.
Supplement No. 2 stated that the DOJ inquiry was still ongoing and that involved NRC personnel had "been requested by DOJ not to discuss the details of the matter."
- SER, Supp. No. 2 (Staff Exhibit 13), at 9.
The staff also noted, however, that it would " resume its investigation" when the Justice Department concluded, and that in any event it believed, on the basis of a preliminary review of the allegations, that any management deficiencies have been corrected and that "the identified concerns appear to be only of historical significance."
Id. at 9, 10.13 ;The-message was manifest:
the Hartman allegations ~would not be investigated further because the Justice Department was conducting its own inquiry.14 Furthermore, the clear implication was that the NRC's investigation would resume 13 The focus of both SER supplements was on alleged failures to adhere to procedures.
There was no suggestion that would have alerted the parties -- save a reference to
" management philosophy" in Supplement No. 1 -- to possible management involvement in the alleged wrongdoing.
14 Although the SER suggests otherwise, the.re was no legal bar to the NRC's continued, parallel investigation of the Hartman allegations.
See Securities and Exchange Commission v. Dresser Industries, Inc., 628 F.2d 1368 (D. C.
Cir. 1980) (en banc), cert. denied, 449 U.S.
993 (1980);
TMI-2, CLI-80-22, supra, 11 NEC at 729-30.
18 later and could be pursued then at hearing, if necessary.
See also C.Tr. 16-17.
It is thus understandable that neither the other parties nor the Licensing Board pursued the matter at the 14 NRC at 557-58.15 hearing below.
See LEP-82-32, suora, The first time that it became apparent to intervenors that Harrman's allegations were not "off limits" and could be pursued at hearing was upon examination of the B&W trial record.
That proceeding demonstrated that the pendency of the DOJ investigation does not necessarily preclude other types of inquiries into the same matter.16 In these circumstances, it would be fundamentally unfair to find that intervenors could and should have raised the Hartman -
allegations earlier.
Had they tried to do so, we have no doubt that the staff and licensee would have interposed 15 At the December 1981 reopened hearing on cheating, Mrs. Aamodt noted difficulty in reaching Hartman and his inability to " speak with anyone in this hearing because of his involvement in [the Grand Jury] investigation."
Tr.
26,347.
Licensee, as well, did nothing to prompt the full airing of Hartman's charges.
Although it had commissioned an outside study of the matter, it did not disclose the resulting 1980 Faegre & Benson Report to the staff, the other parties., or any adjudicatory board until the spring of 1983.
See note 38, infra.
16 In addition to the Hartman deposition read into the B&W trial record, the deposition of another former TMI-2 control room operator, Theodore F.
Illjes, was taken, also addressing the. leak rate data problem.
19 forceful objections on the basis of the Grand Jury 17 proceeding.
b.
Whether the Hartman allegations raise significant safety issues need not detain us long.
Alleged violation of technical specifications, noncompliance with proper cperating procedures, and destruction and falsification of records at Unit 2 before the accident -- all assertedly under the auspices of at least first level management --
ebviously have serious implications for the propose 6 restart of Unit 1.
The facts that the NRC staff referred this matter to the Justice Department for criminal investigation and that the Department has presented it to two Gra'nd Juries underrcore its significance.
Moreover, among the matters the Cormission directed the Eicensing Board to examine in this phase of the proceeding was Issue 10 -
whether the actions of Metropolitan Edison's corporate or plant management (or any part or individual member thereof) in connection.with the accident at Unit 2 reveal deficiencies in the corporate or plant management that must be corrected before Unit 1 can be operated safely [.]
CLI-80-5, 11 NRC 408, 409 (1980).
The staff early on viewed 17 In any. event, we have long recognized that "a matter may be of such gravity that the motion to reopen should be granted notwithstanding that it might have been presented earlier."
Vermont Yankee, supra, 6 AEC at 523.
As
~
demonstrated below, this is such a case.
O
20 the.Hartman-allegations as within the scope of this issue, and,,no one now claims otherwise.10 In its first supplement to the SER, the staff stated:
"The allegations raised ccncerns regarding the principles of ec=pliance with cperating procedures and management philosophy and actions."
SER, Supp. No. 1 (Staff Exhibit 4), at 37.
Nothing in the information that has been revealed so far -- though certainly not dispositive of any issue -- has alleviated those concerns.19 In fact, the Faegre & Benson Report, Ornstein Interview, and Illjes deposition (see note 16, supra) are generally consistent with Hartman's ILE Interview.
Plainly, they demonstrate the need for additional inquiry.
i c.
Determining if there might have been a different outcome below, had the newly proffered evidence been considered, is generally the most difficult of the three reopening criteria to asEIdHT ThaE' task ariss here in a e
18 Issue 13 -
"such other specific issues as the Board deems relevant to the resolution of the issues set forth in this order" -- also provides a basis for including the Hartman allegations within the scope of the proceeding.
CLI-80-5, supra, 11 NRC at 409.
19 In SER Supplement No. 2, the staff described the Hartman allegations as having only " historical significance."
SER, Supp. No. 2 (Staff Exhibit J3), at 10.
The staff has recently recanted on this point and now says only thnt licensee's actions in response to the allegations were adequate.
NRC Staff's Comments on the Analysis of the GPU v.
B&W Transcript, supra, at 3 n.5.
21 somewhat different centext than is ordinarily the case and 20
'is less troublesome.
The Hartman allegations highlight a gap in the record that the Licensing Board explicitly acknowledged through its conditional finding of,no unremedied deficiencies in licensee's management.
The Board stated:
In overall summary of CLI-80-5 issue (10), we have noted our lack of knowledge about the Department of Justice investigation.
Subject to this matter,
. we find no deficiencies in the corporate or plant management, arising from our inquiry into canagement's response to the accident, that have not been corrected and which must be corrected before there is reasonable assurance that Unit I can be operated safely.
(emphasis added).21
- Thus, LBP-81-32, supra, 14 NRC at 557 in effect, the record on this point has never closed.
The Board's decision to qualify its finding of management competence and integrity, because of the ongoing investigation, is tantamount to a determination that consideration of the Hartman allegatione might well have 20 Neither licensee nor the staff argues that intervenors have failed to meet their burden on this point.
21 At the same time, the Board also stated that its limited information about the allegations provided "no basis to conclude that restart [(a decision entrusted to the Commission itself)) should not be permitted until the DOJ investigation is complete."
LBP-81-32, supra, 14 NRC at 557 (emphasis added).
e
22 made a difference in the outcome.22 We would agree.
e Moreover, we cannot make any final judgment on appeal as to licensee's management competence and integrity without an adequate record.
The Hartman allegations fall within the scope of the issues the Commission has directed be resolved through the hearing process.
See pp. 19-20, supra.
The absence of al materially complete record precludes us from reaching any conclusion on those issues, one way or the other.23 "The Commission's primary commitment to a
. air and thorough hearing and decision" in this case requires no less than an exploration of Hartman's charges at hearing.
CLI-79-8, 10 NRC 141, 147 (1979).24 4.
The staff's request that we defer ruling, pend 1ng the outcome of its overall mi.Lagement revalidation review and a separate inquiry by the office of Investigations (OI) specifically into.the..Sartman., allegations.,_dpes not present a satisfactory alternative.
By the staff's own admission, completion of the revalidation r; iew is "'many months 22 For example, additional license conditions might have been imposed.
23 Similarly, in another part of this same proceeding, we reopened the record for supplementation on the issue of decay heat removal.
See ALAB-708, 16 NRC *.770 (1982).
24 We note that the Commission directed the Licensing Board to " exercise its authority to seek to ensure that it receives all information necessary to a thorough investigation and resolution of the questions before it."
CLI-79-8, supra, 10 NRC at'147.
23 away.'"
NRC Staff's Memorandum on the Status of Its TMI-1 Resta,rt Review (July 21, 19 8 3 ) at 2.
The OI investigation of the Hartman allegations is estimated to be complete by December 1983 but, in the staff's view, it may nevertheless be constrained by the pending Grand Jury proceeding.
Id. at 2-3.
It is already more than four years since Hartman first made his allegations of falsification of leak rate data to NRC inspectors, and three years since this agency halted its investigation and referred the matter to DOJ.
One Grand Jury has expired without action, and another is still sitting, with no prospect of imminent decision.25 In short, by next year we may be exactly where we are today -
" square one."
Further deferral of inquiry into a matter clearly within the scope of this adjudicatory proceeding -- to await the outcome of an investigation that should have been undertaken and completed at least three years ago -- would be unconscionable, as well as contrary to the Commission's expressed desire that this proceeding be conducted expeditiously.
See CLI-79-8, supra, 10 NRC at 147.,.
25 Appa.:ently the Grand Jury has until spring 1984, when the statute of limitations on the possible. crimes involved expires, to hand down an indictment.
See letter from J. Scinto (Deputy Director, Hearing Division, NRC Office of Executive Legal Director) to Appeal Board (August 4,
1983) at 1.
l
24 4
recent staff action pur:suant to its e
w_-:Moreov e r,
revalidation effort provides no meaniugful substantive basis for abiding the outcome of the various orgoing investigations.
In Inspection Report No. 50-289/83-10, the staff discusses the alleged falsification of leak rate data, but notes that it restricted its inquiry into the matter to a review of present and former job titles.
No individuals in the TMI-1 organization were interviewed and no job descriptions or other company records were examined.
Consequently, the report includes " findings" based wholly on the staff's speculation and are thus highly suspect.
Inothercircumstances$wearereluctanttointerfere with staff reviews and investigations.
But here, too much valuable tine has been wasted.
Evidence and witnesses' memories are getting stale.
See Dresser, note 14, supra, 628 F.2d at,1377,It sipply..i.s t_ ige to move, forward on the 26-As only ane example, the report notes that the present Manager of Plant Operations at TMI-1 may have been aware of TMI-2 les.k rate testing difficulties becaus.e he held a dual license to operate both units.
It also notes that he could have been involved in such testing if he had ever filled in at TMI-2 as a shift supervisor.
Without ever interviewing that individual (or others in a position to know) or examining personnel records, the inspectors sinply concluded that it was "unlikely" that he had any " direct" connection with TM1-2 leak rate testing irregularities.
Inspection Repor'c No. 50-289/83-10, supra, at 10-5, 10-6.
Such conclusory statements create a lack of confia nce in the staff review and certainly provide no reliable basis on which a decision of any nature can be based.
9 e
9
25 Hartman allegations, as our independent responsibility to protect the public health and safety under the Atcric Energy
~-
Act re,uires.
See id. at 1375, 1377, 1380; TMI~2, CLI-80-22, supra, 11 NRC at 730.
We believe the most fruitful way to achieve this is within the adjudicatory setting and with the active participation of all parties.27 We also believe that the Licensing Board in this case is better equipped than we to preside over a reopened hearing on the Hartman allegations.
We therefore remand the case to that Board for further hearing on a schedule that permits this matter to be explored and resolved fully and as expeditiously as possible.
(In the meantine, we will continue our consideration of the appeals of other aspects of the canagement phase of the proceeding.
An order scheduling cral argument will be issued soon.)
27'As we have pointed out at note 14, supra, the pendency of the Grand Jury proceeding does not legally bar parallel administrative action.
There is also apparently no reason to continue deferring to the Justice Department on the basis of comity.
See C.Tr. 26.
Moreover, the Commission has recently adopted a policy statement addressing the relationship of ongoing NEC investigations and ae' judicatory proceedings that involve the sc=e subject The policy recognires that both can proceed ratter.
simultaneously and establishes procedur.es to deal with conflicts that may arise concerning the public disclosure of investigatory information.
48 Fed. Reg. 36,358 (1983).
t
26
.We entrust the mechanics of the reopened hearing to the Licensing Board's expertise.
However, our review of the material recently submitted to us in connection with the Hartman allegations -- which the Licensing Board has not yet had an cpportunity to scrutinize -- prcmpts us to note several areas that should be pursued at the hearing.
a.
The focus on the Hartman allegations thus far has been on whether new cperating procedures are adequate to prevent a recurrence of the problems described by Hartman.
- See, e.g.,
SER, Supp. No. 2 (Staff Exhibit 13), at 10; C.Tr.
52.
The individuals implicated by Hartman's charges, however, should not be overlooked, particularly if they,are now employed in connection with TMI-1.
Even if they no lenger work for licensee or have no duties at TMI-1, these persons are still in a position to shed light on the matter.28 b.
The Faegre & Benson Report includes a fairly ec prehensive technical analysis of the leak rate problem, u
28 Among the specific questions to ask are:
Did the incidents described by Hartman in fact occur?
If so, who knew about them?
Who authorized them?
Who looked the other way?
Did the operators and any other individuais involved assume their actions were acceptable operating procedures?
On the other hand, did they assume otherwise and hope they would not get caught or be reprimanded?
e e
27 and we assume it will be offered into evidence.29 The report seems to show that oscillations and lack of control of plant parameters existed for approximately a year and may have been a significant cause of the operators' alleged inability to cbtain ccnsistent leak rate data.
See 93-107.30 generally Faegre & Bensen Reporr, Vol. Two, at Because of its limited scope, however, the report does not contain any meaningful information about management efforts to identify and correct the oscillation problem.31 We believe it would be useful to obtain such informatien, because the ability to operate a plant without substantial oscillations in vital plant parameters bears on management ccmpetence.32 Thus, Hartman's allegations raise questions 29 Because a number of key plant personnel declined requests for interviews, the report does not include an analysis of possible management involvement.in the falsification-of leak rate data.
Faegre & Benson Report, Vol. One, at 13.
30 Another factor that seems to account for the asserted difficulty in getting a "gcod" leak rate at TMI-2 is the one gpm unidentified leakage technical specification limit itself.
Because the leakage pathways at the two _ nits are classified differently, the TMI-2 limit is more,.
stringent than that for TMI-1 and curiously does not allow for evaporative losses.
See id., Vol. Two, at 14-16.
31 Several of Hartman's statements include references to a supervisor's general comment that people uere " working on" the leak rate data problems of concern to Hartman.
- See, e.g.,
B&W trial Tr. 7055, 7058.
32 The Faegre & Benson Report, Vol. One, at 57 reaches the same conclusion.
(Footnote Continued) j
28 about not only management integrity, but also canagement
'wiliingness and ability to resolve ir.portant operational deficiencies.
B.
The Aamodts' earlier motion to reopen concerns the May 1982 discovery of unattended radiation worker examinations and answer keys, revealed in Board Notification BN-82-84 and Inspection. Report No. 50-289/82-07.
See pp.
3-4, suora.
The motion itself is timely, as both the staff and licensee concede.
We agree with them, however, that this new information is neither significant nor likely to have affected the Licensing Board's decision.
We therefore deny the motion.
The motion contains rather generalized complaints about management integrity.
It refers to portions of the Special Master's report and the Licensing Board's subsequent partial I
(Footnote Continued)
We recognize that licensee "nas instituted major organizational and staffing changes in order to provide additional safety review and operational advice regarding TMI-1."
LEP-81-32, supra, 14 NRC at 519.
See generally id.
at 519-28, 558-63.
Presumably, the new procedures are designed to detect and remedy problems such as substantial i
oscillations in plant parameters.
Our review cf the pending appeals will consider the adequacy of these changes.
But in order to achieve a complete hearing on the Hartman allegations, we believe it is also necessary to reopen to examine management's specific response to all aspects of the leak rate data problem raised by Hartman.
W i
I
29 initial decision in the reopened hearing on cheating.
The
' referenced material concerns the Aamodts' earlier allegations of cheating on radiation worker permit tests.
The Aamodts' only witness in support of these allegations was found by both the Special Master and the Licensing Board to be not credible, and thus the allegations, not proven.
LBP-82-34B, 15 NRC 918, 988-89 (1982); LEP-82-56, sucra, 16 NRC at 333.
Our attention has been directed to nothing that casts doubt on these judgments.
In supplemental comments submitted after oral argument on the motion, the Aamodts refer to a March 17, 1982, Notice of violation concerning unauthorized entry to a high radiation area at TMI-1.
Even if this information had been provided in a timely manner, the Aamodts have failed to.
establish a specific nexus between the subject of that notice and the unattended examinations and answer keys discu s sed in BN-8 2-8 4. 3 3- --~ ~---
- - - ~ ~
~
~
The inspection report itself also provides nt uasis for grr.nting the motion.
Although there were two instances in a
33 Although the notice was made public in April 1982, before the incidents on which the Aamodts base their request to reopen, the information was thus also available well before the Aamodts filed this motion to reopen.
[.
We also note that a May 4, 1982, letter frem H.
Hukill (Director, TMI-1) to R.
Haynes (NRC Region I Administrator) described the vario~us corrective actions taken by licensee in response to the notice.
m e
A L
30 three' days of examinations being left unattended, the repor; cIncludesthat this was apparently "an isolated incident attributable to a single individual's practices."
Several corrective measures were undertaken, including use of new examinations, storage of copies in locked containers when not in use, and reprimand of the involved supervisor.34 These actions were described in an internal TMI memorandum within about two weeks of the initial incident.
Based on a review of all these measures, the NRC inspector determined that no further action (including a formal Notice of Violation) was necessary.
Inspection Report No.
50-289/82-07, supra, at 17.
We have no reason to conclude ctherwise.
We reject the Aamodts' claim that these incidents show licensee's inability to prevent a compromire of its training and testing program.
On the contrary, we believe that the series of events describ~65 In Ins ~pection Eeport No.
50-289/82-07 is evidence that the system is working.
Irregularities were discovered by licensee itself and prcmptly corrected.
This is fully consistent with the evidence presented to the Special Master by Dr. Robert L.
34 Licensee elaborates on the corrective action and informs us that this individual later resigned.
Licensee Answer to Aamodt Motion (September 20, 1982) at 3-4, 8-9.
We remind licensee that information of this nature is more properly provided in affidavit form.
31 Long, now Vice President of Nuclear Assurance for licensee.
His t'estimony was that " specific methods.
for ensuring that exams are secured" would be provided; his staff would "take reasures to protect the effica.cy of the exams [they) administer"; cheating and similar misconduct is to be reported promptly and will result in appropriate disciplinary action by responsible management; and GPU Nuclear requires " strict compliance" with these policies.
Long, fol. Tr. 24,925, at 25-28.
Licensee did not promise that preblems of this nature would never occur, nor could it.
Where there is human involvement, it is not possible to speak in absolutes.
AsfortheAamodts'chargethatboththestaf[and-licensee unduly withheld information concerning this matter, we disagree.
The incidents themselves and licensee's corrective action were disclosed within days by licensee to
.=
the staff during a routine inspection conducted May 11 -
June B, 1982.
The inspection report is dated July I and was placed in the public docket rooms (including Harrisburg) on July 22.
The Board Notification was issued to us and the parties en August 17.
Although we frequently remind the s
staff of its obligation to issue board notifications as promptly as possible, we do not regard the time lapses set O
W
32 out'above a~s unreasonable, given inherent bureaucratic delays and the nature of the matter involved. 5 C.
The Aamodts' second motion seeks reopening for hearing on four matters in addition to the Hartman allegations already discussed above.
We deny the motion on all four Counts.
1.
The Aamodts contend that a 1978 in-house management audit at TMI, an exhibit at the B&W trial, constitutes "new and exceedingly. germane" evidence.
Aamodt
. Motions to Reopen, sucra, at 8.
Of particular relevance, in intervenors' view, is the audit's discussion of training deficiencies.
Both the staff and licensee point out that this audir was made available to all parties during prehearing discovery in March 1980.
NRC Staff's Answer to Aamodt's Motion, suora, at B; Licensee's Reply to Aamodts' Motion, suora, at 7; -It therefore-does not-constitute new evidence and the Aamodts are unjustifiably late in seeking recpening on this basis. 'Moreover, the significance-of the audit to this proceeding is not apparent.
Its findings do suggest much room for improvement in TMI management'in 1978.
35 Our judgnent on this motion should not be perceived as reflecting our views on licensee's overall training pr gram or on the cheating inquiry.
Those matters will be taken up in ou'r consideration of the merits of the pending appeals.
9 t
33 But as a result of the accident at Unit 2 and the ev'ansive hear ngs celow, licensee's present management and training program are substantially different from that in 1978.
See 6
LEP-81-32, surra, 14 NRC at 403-79.
The Aamodts fail to explain how considerat' ion now of this report -- critical of a management organization that no longer exists -- might affect the outcome of this proceeding.
2.
The Aamodts suggest that certain comments made by the judge presiding at the B&W trial are new evidence, casting what they consider to be further doubt on the credibility of Robert' Arnold, president of GPU Nuclear.
Aamodt Motions to Reopen, suora, at 9, 10.
We reject the notion, however, that these comments -- even if accurately stated by the Aamodts -- might have some bearing on the resolution of this case.37 Arnold testified s
extensively _before the.Special Master and.i. censing Board, L
36 In affidavits attached to the staff's reply to the motion, three staff witnesses aver that they have reviewed the 1978 audit and that it would not alter their previous testimony on present CMI nanagement.
Affidavits of Lawrence P.
Crocker (May 5, 1983), Frederick R.
Allenspach (May 4, 1983), and Richard R. Keinig (May 5, 1983), attached te NRC Staff's Answer to Aamodt's Motion, supra.
37 We have reviewed the B&W trial transcript pages cited by the Atmodts (Tr. 1555, 1690-99, 1741) and do not fully agree with their characterization of the judge's remarks.
9 Y
e
34 and thus both had the opportunity to observe his demeanor y.
and weigh the credibility of his testimony given in this very proceeding.
The Licensing Board's ultimate judgnent on this ccore is a matter to be taken up when we consider the intervenors' pending appeals.
In this circumstance, we believe that it would be inappropriate to give weight to the comments of a judge during trial in a different proceeding, involving different parties and issues, particularly when that litigation ended in a stipulated settlement before the judge heard all the evidence and issued a formal opinion.
3.
The B&W tria1 record, in the Aamodts' view, establishes the superior technical resources of B&W.
Although it is unclear exactly what the new and significant evidence undergirding their motion is, the Aamodts assert that it could lead to a more adequate resolution of the deficiencies in training explored at the hearing below.
j Their apparent view is t t B&W, ather t a licensee and l
the NEC, should bear principal responsibility for training and testing at TMI.
We agree with licensee and the staff that the Aamodts j
have provided no basis for reopening the record on this i
i point.
In the first place, licensee concedes that B&W's I
expertise in certain areas is superior to its c,wn and notes l
that extensive testimony was adduced below concerning B&W's participation in various aspects of licensee's training
~
Licensee's Reply to Aamodts' Motion, supra, at 10.
program.
I,
35 The staff emphasizes that, while the NRC encourages the use o'f vender personnel in training, it is not required, inasmuch as the nuclear steam supply system vendor typically cannot provide all necessary information on plant components supplied by other manufacturers.
Ultimately, the utility, as the holder of an NRC license, must bear principal responsibility for operation and thus tra'.ning.
- Further, the NRC cannot legally delegate its operator licensing authority to a private ec=pany like B&W.
See Affidavit of Bruce A. Boger (May 12, 1983), attached to NRC Staff's Answer to Aamodt's Motion, supra.
The information on B&W's superior resources that the Aamodts seek to admit into the record would not alter any of these factors.
4.
According to the Aamodts, the B&W trial record
" calls into question the Board's decision that the operators were able to handle emergencies with no undue risk to the public."
Aanodt '.. Motion to Reopen Rec 6rd', supra, at
~
13.
They claim that comments by GPU counsel at the B&W trial show that various stresses in the control room will reduce the cperators' ability to cope during an emergency, contrary to the Licensing Board's findings.
See LEP-81-32, s u p rr,, 14 NRC at 474-75.
The Aamodts urge the establishment of an offsite decision center with remote readout capability from the control room as a means of ameliorating this situation.
e
36 hhe connents of counsel upon which the Aamodts rely c6nstitute no new or significant information concerning operator ability to act in an emergency.
That an emergency will create a certain amount of stress in the control room is neither a revelation nor a matter that can be eliminated entirely.
The Licensing Board fully considered it and concluded that licensee has " consciously factored [this]
into its program for preparation of operators" and has undertaken sufficient measures "to alleviate or minimize the potential for stress in operators under critical situatio;4s.
Id. at 475.
The cited portions of the B&W trial transcript (Tr. 33, 65, 79, 80) do not undermine this finding.
As for the Aamodts' suggestion of a fully l.* equipped offsite decision center, the staff expects licensee's onsite Technical Support Center and of f site Emergency Operations racility to have computer terminals displaying all critical plant parameters foilowing' tee'~fErit refueling' outage after
~
~
~
restart (if authorized).
Affidavit of Falk Kantor (May 12, 1983) at 3, attached to NRC Staff's Answer to Aamodt's Motion, supra.
Whether this should be a prerequisite to restart is a matter for the Commission to decide in:the course of its "immediate effectiveness" review.
s D.
As discussed earlier (see pp.
6-8, supra), TMIA's motion seeks reopening on, in addition to the Hartman allegations, the following four "open" items in the staff's G
37 revalidation effort:
statements in the B&W trial record; 3
the Parks and King allegations of retaliation against whistleblowers at the TM7-2 cleanup operation; concerns raised by the recent BETA and RHR managemsnt audits; and the timeliness of licensee's submission of the BETA and RER Reports and other documents.38 We agree with the staff that it is premature to reopen the record at this point for further hearing on any of these four items.
As explained in greater detail below, TMIA has failed to call to our attention anything so far that might have made a difference in the Licensing Board's decision.
Moreover, the staff review in each instance (including that of oI) is still
~
under way and may yet disclose other related information that does warrant further hearing.39 If that proves to be 38 We assume that among the "other documents" that the staff is considering in this regard is the Faegre & Benson Report, dated September 1980 but not submitted to the staff, parties, or any adjudicatory board until spring 1983.
9
- See, e.g.,
Board Notification BN-83-117 (August 4, 1983), where the staff advises us that certain documents uncovered during its review of the B&W record relate to present management's role in responding to the TMI accident and thus may be relevant to the resolution ~of Issue (10).
The matter is being referred to OI for investigation.
In this connection, we distinguish the staff's still ongoing review of the Hartman allegations.
As explaine4 above, deferral of our ruling on the motion and of further hearing is not satisfactory, given the already protracted delays.in that investigation.
The four items discussed here are of considerably more recent vintage and we are thus more (Footnote Continued)
O
5:
the case, intervenors may then seek again to satisfy the v
Diablo Canyon criteria for reopening.
This is not to say that the four matters on which TMIA bases its motion to reopen are unimportant.
For example, reprisals against whistleblower-employees -- if they are proven and if a nexus to TMI-l management is suggested --
certainly reflect negatively on management integrity and would provide a basis for further exploration.
See Board Notification BN-83-46 (April 11, 1983).40 The untimely (Footnote Continued)
Emenable to letting the staff complete its review.,..
TMIA mistakenly believes that permitting the staff to advise us of its evaluation of these open issues constitutes an improper ex parte communication.
TMIA Motion to Raopen the Record (May 23, 1983) at 6.
In the first place, the results i
of such staff reviews are communicated to the adjudicatory boards through public filings, served on all parties.
Any party is free to seek reopening (or other appropriate relief) on the basis of~Ehe'~ndwly Bisclose~d'in' formation.
-~
There is nothing ex parte or otherwise violative of a party's hearing rights about that.
Moreover, all parties, including the staff, are obliged to bring any significant new information to the boards' attention.
Tennessee Vallev
^
Authority (Browns Ferry Nuclear Plant, Units 1, 2 and 3),
ALAB-677, 15 NRC 1387, 1394 (1982).
O We note that one of the alleged whistleblowers, Parks, is actually an employee of Bechtel (the principal contractor for the TMI-2 cleanup operation) and recently reached a settlement of his complaint.
See Preliminary Notification of Event PNO-TMI-83-06 (July 27, 1983).
One of TMIA's other bases for reopening is an earlier Department of Labor f.nding in favor of Parks.
Presumably this is a matter that the pending OI investigation will take into account, along with Labor's disposition of the King cceplaint.
We understand that the latter was initially denied and is now on appeal within that agency.
1
39 provision of significant information is also an important measure of a licensee's character, particularly if it is found to constitute a " material false statement."
See vircinia Electric an3 Power Co. (North Anna Power Station, Units 1 and 2), CLI-75-22, 4 NRC 480, 488-93 (1976).
As for the BETA and RHR Reports, we agree with TMIA that some portions of each are critical of TMI management.
But other selective excerp ts reflect favorably upon licensee.
Significantly, the specific focus of the BETA Report is on ways to cut costs and improve the efficiency of operations, not on safety matters.
BETA Report at 1.
A follbw-up letter from the principal author of the BETA Report, William Wegner (provided to the parties and us at the same time as the report), stresses this fact and explains the relationship of the report to testimony he gave before the Licensing Board.in 1981.
[T]he latest BETA review did not address the same issues [as the 1980 review) even though many of the same functirnal areas were reviewed.
The predictive nature of my 19 81 testimony was.in almost all cases fully substantiated by the 1982 review.
Where expectations fell short it was in the area of ef ficiency rather than matters relating to safety or competence.
, 'e Letter from W.
Wegner to R.
Arnold (May 13, 1983) at 4.
See generally Wegner, fol. Tr. 13,284.
A co-author of the RER Report on operator att.udes states that his work represents only the initial stage of a much larger consulting activity and is "one-sided."
The survey and resulting data, which
?
40 combined TMI and another licensee facility (Oyster Creek),
were not designed to address management integrity directly, and he acknowledges that some questions and their responses may have been confusing.
Letter from P.
D'Arcy to R.
Arnold (May 13, 1983).
Given the limitations in both reports and
-- more important -- the fact that the ground covered therein (including the criticisms) was well traversed at the hearing below, we are unable to conclude that any of the matter called to our attention might have made a difference in the Licensing Board's decision.
Further, we would not want to discourage any licensee from undertaking such reviews of its management and operations (and disclosing their results) for fear of reopening a closed record.
Our perusal of the BETA Report, in particular, shows it to be an extremely useful document, upon which licensee can rely to improve its operation.overall.._.._._,
The other three bases on which TMIA's motion rests also fail to support recpening of the record.
First, we are inclined to agree with TMIA that Inspection Report No.
50-289/83-10 is not a very credible document.
See p 24, supra.
But so far that document is not in evidence and thus its credibility is not in issue.
If the document is
~
introduced into evidence at the reopened hearing, TMIA is, of course, free to challenge and discredit it at that time.
Similarly, the credibility of the Stello Report on the B&W trial (see pp. 10-11, supra) is also not at issue here.
41 Moreover, the Commission itself has requested the more thorough review of the B&W record now under way, essentially mooting the adequacy of the Stello Report as an issue.
Finally, TMIA's reference to allegations by whistleblowers other than Parks and Y.ing are conpletely undocunented.
In conclusion, the motions of the Aamodts and TMIA are cranted insofar as they seek reopening of the record for further hearing on the Hartman allegations.
We remand this matter to the Licensing Board for hearing consistent with the views expressed in this opit. ion.
Otherwise, the motions to reopen are denied.
It is so ORDERID.
FOR THE APPEAL BOARD M
S C. Cgan Sh5enaker Secretary to the Appeal Board e
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[pa 'r ew ~ 'c, UNITED STATES
! b,h" lb NUCLEAR REGULATORY COMMISSION i
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September 2,1983 Docket No. 50-289 ME!'ORANDUM 70R:
Chain'an Palladino Commissioner Gilinsky Commissioner Roberts Co:r.issioner Asselstine Commissioner Bernthal FROM:
Darrell G. Eisenhut, Director, Division of Licensing, NRR
SUBJECT:
BOARD NOTIFICATION (SN-83138 ) TMI-1 RESTART HEARING The NRC Staff is currently looking into the matter of pcssible incidents of falsification of reactor coolant system (RCS) leak rate tests at TMI-1 prior to the accident at TMI-2.
This inspection by Region I is not yet completed; however, an examination of certain TMI-1 site records reviewed in conjunction with this inspection suggest that a statement previously made by the Staff in the TMI-I restart proceeding, and believed to be accurate at the time, may prove to be incorrect.
The statement in cuestion arises out of the NRC investigation of the Hartman allegations of falsification of leak rate test data at TMI-2 and is contained in NUREG-0680, Supp. No. 2 (March 1981).
Specifically, the Staff stated in that document that:
"Furtber, although the NRC investigation is not complete, and the examination of Unit I records was limited, no indication of practices at Unit 1 similar to those alleged at Unit 2 were identified."
By way of bae.:,gropnd, the basis for the above-quoted statement in NUREG-0680 Supp. 2 was a draft document written by Mr. Keith Christopher in April 1980 (a copy of which is attached) which was provided to Mr. Tim Martin at that tire.
Mr. Christopher was a Region I investigator assigned to the investigation of Mr. Hartman's allegations and Mr. Martin was the Investigation Team Leader.
During the course of that invest igatien, which was not completed because of the referral of the Hartman a'.lecati.cns to the De:'artment of Justice, Mr. Christocher performed a linited review of TMI-1 d;; w.s relating to leak rate cal:ulations.
He revieaed approxinately
'2 r
% py 1 >-
n p
> vu N I y
. 1200 RCS leak rate test records generated at TMI-1 during the period April 25, 1978 to December 31, 1978.
Four of these records appeared to represent results of tests during which the Control Rcom Operator (CRO) log indicated water had been added to the RCS and the computer test records indicaced that this infornation had not been logged into the computer.
Nevertheless, at the time NUREG-C650, Suop. 2, was issued, it was concluded that there was no indication of practices at Unit 1 similar to those alleged at Unit 2 for the following reascas.
1.
Hartman made no allegation that any of the practices he maintained occurred at TMI-2 also occurred at TMI-1; moreover, during his extended examination by NRC investigators, they were left with the distinct impression that the problems identified by Hartman were isolated to Unit 2, because he contrasted the problent at Unit 2 with his positive perceptions of the construction and operations at Unit 1; 2.
The acceptance criteria for TMI-l leak rate tests was lesu stringent than for TMI-2, due to the additional consideration of a 0.51 GPM evaporative loss factor; 3.
The dates of the four records in question and the personnel involved showed no consistent pattern; 4
The number of TMI-1 records in question constituted one-third percent (0.33%) error rate, which was not comparable to the seven percent error rate found at TMI-2; and, 5.
The leak rate test records found in question had a number of possible benign explanations; therefore, they were not in themselves indications of falsified leak rate test records.
Although the ongoing staff inspection has called into question whether the four examples cited earlier are valid, the current inspection, which is more extensive than the limited examination of Unit I records that was conducted in 1980, has raised new staff concerns relative to the way leak rate testing was conducted at TMI-1.
The present staff inspection should be completed in the next several weeks and a referral to the Office of Investigations for additional review is exoected.
However, when the inspection recort has been completed, the staff
. will provide the Commission and the Boards with its results.
If apprcpriate, the staff will utilize the procedures set forth in the Commissicn's August 5, 1983, Statement of Policy.
( M M;ma(
! Cut,M Darrell G. Eisenhut, Director Division of Licensing, NRR
Enclosure:
As Stated cc:
(w/ Encl.)
Dr. John N. Buck, ASLAB Judge Reginald L. Gotchy, ASLAB Christine N. Kohl, Esq., ASLAB Dr. Lawrence R. Quaries, ASLAB Judge Gary L. Edles, ASLAB Ivan W. Smith, ASLB Dr. Linda W. Little, ASLB Dr. Walter H. Jordan, ASLB Partiee to Hearing O
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September 23,19E3 j
, 's C::Let 50-289 l'EMORANDUM FOR:
Chairman Palladino Commissioner Gilinsky Ccamissioner Roberts Comissioner Asselstine Comissioner Bernthal FROM:
Darrell G. Eisenhut, Director Division of Licensing Office of Nuclear Reacter Regulatien
SUBJECT:
. INSPECTION OF LEAK RATE TESTING AT TMI-I (50ARD NOTIFICATION 83-13SA)
In accordance with the NRC procedures for Board Notification, the following The Boards and information is being transmitted directly to the Commission.
Parties are being informed by copy of this memorandum.
Scard Notification 83-138, September 2, 1983, indicated.that a recent inspecticn of certain TMI-1 site records may show that a statement made by the staff in the TMI-1 restart proceeding, and believed to be accurate at that This inspection is more extensive than the limited time, was incorrect.
examination of Unit I records that was conducted in 1980.
Region 1 has
< completed this inspection and determined that RCS leak rate tests performed at TMI-I during the year immediately preceding the TMI-2 accident contain several and deviations from regulatory and procedural requirements wnich, inadequacir in most cases, lead to a less conservative calculation of the leakage rate.
Therefore, the NRC staff considers it necessary to change the previously stated position in NUREG-0580, Supplement No. 2 (March 1981), that "Further, although the NRC investigation is not corplete, and the examination of Unit I records was limited, no indication of practices at Unit I similar to those alleged at Uni.t 2 were identified." The NRC staff rcw concludes that there were indications of practices at TMI-I related to RCS leak rate testing sinilar to those alleged at TMI-2.
43ToTT6Y / /