ML19317H372
| ML19317H372 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/28/1980 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | METROPOLITAN EDISON CO. |
| References | |
| CLI-80-21, NUDOCS 8006020489 | |
| Download: ML19317H372 (9) | |
Text
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UNITED STATES & AMERICA NUCLEAR REGULATORY COMMISSION td 4
COMMISSIONERS:
4,.
cCCKEED John F. Ahearne, Chairman 4
uggge 3
Victor Gilinsky Richard T. Kennedy 2
MM 2 BN
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Joseph M. Hendrie 6
Office of the secretary
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Peter A. Bradford Docketint & Se"I'*
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/ 41
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In the Matter of METROPOLITAN EDIS0N COMPANY
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Docket No. 50-320
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(Three Mile Nuclear Station,
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Unit No. 2)
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MEMORANDUM AND ORDER CLI-80-21 On May 2,1980, the NRC's Director of the Office of Inspection and Enforcement issued subpoenas to six Metropolitan Edison employees 1/ calling upon them to appear and give testimony on May 20 and May ?l,1980, concerning their knowledge of three particular events which occurred on March 28, 1979, the first day of the Three Mile Island, Unit 2, accident.
The subjects at issue were:
(a) the calculated dose rate of 10 rem /hr in Goldsboro, Pennsy-lvania; (b) elevated in-core themocouple readings; and (c) the pressure spike in the containment vessel.
As explained in more detail below the subpoenas were issued for the purpose of determining whether particular information bearing upon the seriousness of the then ongoing accident at TMI-2 should have been reported to the Commission more promptly, and what enforcement action is appropriate under the circumstances.
-1/
The persons subpoenaed were Messrs. McGovern, Pehler, Wright, Chwastyk, i
Kunder, and Zewe.
8006020
2 We now have before us a motion to quash the subpoenas S/ on the ground that the Commission's referral of some TMI matters to the Department of Justice for criminal proceedings precludes the Cornission from pursuing its civil investigation during the pendency of the Grand Jury investigation currently underway in the Middle District of Pennsylvania.
It is also contended that the subpoenas are unduly burdensome in light of the many investigations of the IMI accident which have already been conducted.
For the reasons discussed below, we deny the motion to quash.
The matters referred by the Commission to the Department of Justice for criminal proceedings are separate and distinct from the subjects covered by the subpoenas issued by the Director of the Office of Inspection and Enforcement, and that referral doec not bar the Commission from pursuing its general health and safety and civil enforcement responsibilities through issuance of the subpoenas here.
Moreover, while we are sensitive to the fact that the six persons under subpoena have previously been questioned, some on several occasions, regarding the TMI-2 accident, they are in fact knowledgeable about the three areas covered by the subpoenas and those areas need to be clarified before the Commission settles upon possible civil enforcement actions.
1.
The Director's Subpoenas The Director's subpoenas were issued pursuant to Section 161(c) of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2201(c)), to assist the Commission in determining whether three pieces of information bearing heavily S!
By agreement, the return date of the subpoenas has been changed to Pay 29 and May 30.
In agreeing to the new return dates counsel for the movants specifically kept the motion to quash as a live issue before us and has
-not waived any right to contest the validity of the subpoenas, i
l
3 upon the expected seriousness of the then ongoing TPI-2 accident ought to have been more promptly reported to the Commission, and, if so, what civil enforce-ment action should be taken.
The investigation into these incidents is a continuation of the NRC's ongoing investigation into the evats surrounding the accident at Three Mile Island which resulted in a civil penalty assessment against Metropolitan Edison on October 25, 1979.
In his flotice of Violation detailing the bases of the civil penalties, the Director of I&E explained that additional enforcement action, including further civil penalties and orders to suspend, modify, or revoke the operating license, were under review "with regard to the reportability of several items of information following the onset of the accident, including specifically the calculated dose rate of 10-40 R/hr in Goldsboro, the elevated in-core thermocouple indications and j
the pressure spike in the containment vessel." 1.etter, Victor Stello to Robert Arnold, dated October 25, 1979.
The Director's decision to defer pressing further enforcement action on l
those items pending further review and investigation was taken in response to the Commission's direction following an October 25 meeting at which the Director briefed the Commission on the enforcement actions he proposed to take against Metropolitan Edison Company.
The Commission was of the view that the facts surrounding those three matters had not been established with sufficient clarity, and should not be pursued by way of a civil penalty or license revocation action at that time. E The Commission instructed the Director to await completion of E
For example,10 CFR 20.403 imposes immediate notification requirements on Commission licensees for certain specified events.
Under Section 234 of the Atomic Energy Act, 42 U.S.C. 2282, the Commission is empowered to assess civil penalties for violation of such Commission regulations.
Additionally, Section 186 of the Atomic Energy Act, 42 U.S.C. 2236, oro-
[
vides the Commission with license revocation powers for failure to observe l.
Comission regulations.
1
4 the Report of the President's Commission on the Accident at Three Mile Island
("Kemeny Report"), and of the Report of the Commission's Special Inquiry Group
("Rogovin Report") to see what light those reports shed, before proceeding fu rther.
After completion of the Rogovin Report earlier this year, and the comple-tion of a Supplemental Report on March 4,1980, looking at the transfer of information on the day of the accident in response to a series of questions raised by Congressman Udall, the Commission directed its Office of Investiga-tion and Enforcement to complete its investigaticn which had been held in abeyance.
See Memorandum, Chaiman Ahearne to William J. Dircks, dtd.
March 21,1980.
The Commission explained its plans to Congressman Udall as follows:
The Commission has devoted substantial time to the question of Pet Ed's conduct during the TliI-2 accident one year ago.
Last fall the NRC assessed a civil penalty against Fet Ed.
However, one area was left open, that related to infonnation transfer.
Last fall the Commission concluded that area should be examined after the Presidential 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 questions relating to infor-mation transfer.
As a result, the Commission continued to defer the I&E review and asked the Special Inquiry Group to examine its records further for information pertaining to your questions and to conduct such further inquiry as it believed
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warranted.
Finally, Dr. Myers of your staff has provided us with a review of this issue.
The Special Inquiry Group has reported on its reexamination in detail, indicating that it finds no direct evidence suggest-ing intentional withholding of information but that it was not appropriate for the Special Inquiry Group to reach conclusions as to enforcement questions.... We have concluded that the appropriate action is to now direct I&E to complete the inves-tiga 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 information transfer.
5 The letter also noted that should the investigation suggest the possibility of criminal prosecution, the case would be referred to the Department of Justice.
In carrying out the Commission's directive, the Director of I&E contacted a number of Met Ed employees concerning their knowledge of the pertinent events on the day of the accident.
Six of the individuals contacted, Hugh McGovern, Lynn Wright, Brian Mehler, Joseph Chwastyk, George Kunder, and William Zewe, refused to be interviewed absent a subpoena.
The Director's subpoenas followed.
Only two of the six individuals subpoenaed by the Director are among the fourteen persons who have been ordered to appear before the Grand Jury. O Based on past testimony and interviews, the Commission believes that each of these six individuals has direct knowledge relating to the transfer of infor-mation on March 28, 1979 and can contribute to establishing whether further enforcement action is appropriate.
2.
Criminal Referral of Hartman Allegations The Grand Jury investigation now pending in the Middle District of Pennsyl-vania was triggered by the Commission's referral to the Department of Justice of a wholly separate and distinct matter -- its investigation of allegations by Harold Hartman, a control room operator at TMI-2, that over a period of several months prior to the TMI-2 accident, employees at TMI-2 may have falsified the results of certain tests.
O These two, Hugh McGovern and Lynn Wright, are both control room operators with no supervisory responsibility.
The other four, Vessrs. Mehler, Chwastyk, Zewe and Kunder, are shift supervisors at TMI.
On May 27 movants filed a Supplement to Motion to Quash Subpoenas advising us that John G.
Herbein, Vice-President, Metropolitan Edison Company, has also been subpoenaed by the Grand Jury.
The list of documents called for by the Herbein subpoena relate to the Hartman allegations described infra and are not a basis for granting the motion to quash.
6 Mr. Hartman's allegations first came to the Commission's attention on May 22, 1979 during an interview with nembers of the NRC Cffice of Inspection &
Enforcement team investigating the accident at TMI-2. At that time, in subse-quent interviews with NRC, and in a deposition by the Special Inquiry Group taken October 29, 1979, Mr. Hartman alleged that (1) results of reactor coolant surveillance leak rate tests were falsified, (2) emergency feedwater pump test criteria were altered, and (3) the estimated control rod positions for attain-ment of criticality were re-calculated in order to meet procedural requirements.
The allegations, if true, could lead to criminal prosecution.
On or about March 22, 1980 NRC inspectors talked to Mr. Hartman at his home, where he repeated the same allegations.
On March 26, NRC inspectors 11artin, Christopher, and Sinclair taped an interview with Mr. Hartman and took his sworn statement.
The NRC then took steps to verify fir. Hartman's allegations by examining existing documentation and other records.
During the latter part of March the NRC's Office of Inspector and Auditor exchanged a few preliminary phone calls with the Department of Justice, inform-ing them of the possibility of a referral for criminal prosecution.
Finally, on April 2,1980, representatives of the NRC met with members of the Department of Justice to brief them on all of the information in its possession, in accordat with the Atomic Energy Act.
42 U.S.C. 2271.
At that time, the NRC brought its own investigation to a halt.
We understand from movents' counsel who is also counsel for those under subpoena by the Grand Jury, that the Grand Jury has subpoenaed tnirteen present employees and one former employee of THI-2.
Two of the six persons subpoenaed by our Director of I&E, Messrs. Wright and McGovern, are among those subpoenaed by the Grand Jury. l'e further understand from novants' counsel that ifr. Wright
7 has already testified and has been excused by the Grand Jury.
A date for Mr. McGovern's Grand Jury appearance has not yet been set.
3.
Lecal Analysis As the facts make clear, the Commission's ongoing investigation regarding the reporting of events that occurred on the first day of the TMI-2 accident is separate and distinct from the Hartman allegations referred to the Depart-ment of Justice for possible criminal prosecution.
Mr. Hartman's allegations go only to events prior to the accident on March 28, 1979.
He was not even present at the TMI-2 site on the day of the accident.
Given these facts there is no basis for reauiring the Commission to await completion of the Grand Jury investigation before proceeding further on the Commission's civil investigation.
The leading case on concurrent criminal and civil investigation is United States v. LaSalle National Bank, 437 U.S. 298 i
(1978).
There the Supreme Court ruled that a summons issued by the Internal Revenue Service was entitled to be enforced so long as it was issued in good faith rnesuant to a legitirzate Internal Revenue Service investigation, and 1
prior to a recommendation by th,e Service to the Department of Justice for a criminal prosecution "which reasonably would relate to the subject matter of the summons. "
Id_. at 318.
See also Garden State National Bank v. United States, 607 F.2d 61 (3d Cir.1979).
This test for the enforceability of agency subpoenas reflected the policy interests that the civil investigation should be allowed to proceed so long as it was not used to broaden the Justice Department's right of criminal litigation discovery, or to infringe on the role l
of the grand jury as the principal tool of criminal accusation.
It is clear from j
8 what we have said earlier that the Director's subpoenas plainly meet the standards established by the Supreme Court for the enforceability of agency subpoenas. E His investigation is being carried out in good faith pursuant to tne Commission's authority under Section 161 of the Atomic Energy Act, and has the legitimate purposes of establishing whether further civil enforcement action should be taken in connection with the Ti1I-2 accident.
That ongoing investigation into the first day of the TMI-2 accident is not reasonably related to the Hartman allegations which the Commission has referred to the Department of Justice for possible criminal prosecution, and which triggered the Grand Jury investigation now in progress.
By allowing its Director of Inspection and Enforcement to proceed with his investigation, the Commission is neither infringing the accusatory role of the Grand Jury, nor acting as a funnel of infornation to expand the Justice Department's criminal discovery rights.
Indeed, if the Commission's congressionally mandated authority to investi-gate matters touching the public health and safety is to be effectively blocked every time a Grand Jury is convened on a matter involving the same nuclear power plant, the Commission will be unduly hampered in carrying out its mandate to protect the public health and safety.
The Commission depends upon its licensees reporting accurately and promptly to the NRC.
If we do not have an investigatory and enforcement mechanism to ensure that reporting, the Commission will be unable to assure compliance with its rules and regulations.
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If anything, the Commission's power to conduct concurrent investigations is broader than that of the IRS since the Atomic Energy Act is "a regulatory l
scheme which is virtually unique in the degree to which broad responsibil-ity is reposed in the administering agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objec-tives." Siecel v. Atomic Eneroy Commission, 400 F.2d 778 (D.C. Cir.1968),
fioreover, unlike the IRS' subpoena power which is directed at determining the tax liability of a carticular person and thus has " interrelated criminal and civil elements", United States v. LaSalle, supra, 437 U.S.
at 310, the Commission's subpoena power is much more general in s.upe.
42 U.S.C. 2201.
9 We also reject the second ground asserted for quashing the subpoenas, the claim that they are overly burdensome given the many investigations of the THI-2 accident that have already taken place. While we are sensitive to the clain that a person should not be subjected to rounds of questioning on the same matter, we have satisfied ourselves that there are important areas of questions, limited in time and subject matter to the specific areas covered by the subpoenas, which have not yet been answered and are legitimate concerns of the Commission in its enforcement responsibilities.
Finally, we note that only one of the six persons the Commission has subpoenaed is currently under subpoena by the Grand Jury, and his appearance date before that body has not been set.
We do not believe the Director's subpoenas are unduly burdensome.
The motion to quash the Director's subpoenas is denied.*
It is so ORDERED.
FortheCommissiog I
/j A2A F
SAMUEL J. CHILK Secretary of the Commission Dated at Washington, D.C.
this 28th day of May
, 1980.
- Section 201 of the Energy Reorganization Act, 42 U.S.C. 5841 provides that action of the Commission shal! be determined by a " majority vote of the members present." Commissioners H:ndrie and Bradford were not present at the meeting at which this Order was approved.
Had they been present at the meeting they would have voted with the majority.
Accordingly, the formal vote of the Commission was 3-0 in favor of the Order.