ML20005B877
| ML20005B877 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 09/11/1981 |
| From: | Bradford L THREE MILE ISLAND ALERT |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20005B876 | List: |
| References | |
| NUDOCS 8109160059 | |
| Download: ML20005B877 (37) | |
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. A UNITED STATES OF AMERfCA p g
!!UCLEAR REGULATORY COBNISSIQ; DOCREFra k- vanno 2 2 SEP14198ll .
PEPORE TIIE COINISSIGi -
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- 7. pIfice of the g In the Matter of %th&%M 49
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METROPOLITRI EDISGI COMPRlY 'N 4 (Three Mile Island Nuclear (Restart)
Station, Unit 1)
IG740RATIDUli E! SUPPORT OF REQUEST POR STAY PE!!DDIC AD>iEJISTRATIVE REVIEW I, Introduction .
THIA requests the Commission to order a stay of the immediate effectiveness of the Atomic Safety and Licensing Board's (ASLB) ,
partial initial decision on management issues which supports restart of THI-1 under certain limited conditions. TMIA makes this request in order to secure for itself and other parties concerned with the critically important management issues a mean-ingful review before the Atomic Safety and Licensing Appeal Board, and to protect the public from immediate and unnecessary bealth and r
safety risks.
II. Chronology and Tackground On March 28, 1979, whil 24I-1 was in a power ascension mode after empleting a refueling outage, TMI-2 experienced an accident, l 24I-1 was immediately shut down and on July 2,1979, the Commission issued an Order directing that TMI-1 be maintained in a shut down position, lacking reasonable assurance that 'IMI-1 could be operated I without endangering the health and safety of the public. The 8109160059 810911 PDR ADOCK 05000289 g PDR t
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Commission further detemined that the public interest would be served by conducting a hearing on the restart of TMI-1 In its Order and Notice of Hearing dated August 9,1979, CLI-79 8, 10URC1141(1979), the Commission appointed the ASLB to conduct the hearing or. 'H4I-1 restart. In this Order, the NRC staff identified safety ccricems to be resolved prior to the restart of TMI-1, resulting from, inter alia, questions about management capabilities and tech-nical resources of Met. Ed. Based cm these concerns, the Cocunission's Director of Nuclear Reactor Regulation (NRR) recommended that ,certain "short tem actions" be required of the Licensee to resolve the Commission's concems Lnd to permit a finding of reasonable assurance that the facility could safely resume operation. Included among these actions was that "Ihe Licensee shall demonstrate its managerial capability and resources to operate Unit-1 while maintaining Unit-2 in a safe configuration and carrying out planned decontamination and/orrestorationactivities. Issues to be addressed include the adequacy of groups providing safety review and operational advice, the management and technical capability and training of operations staff, the sdequacy of the operational Quality Assurance Frogram and the facility procedures and the capa-bility of important support organizations such as Health Physics and Plant Maintenance."
l l 'In the subsequent ASLB proceeding, intervenors placed several l management issues into contention. But in addition, the Commission l
1 itself mandated that the Board ernmine 13 specific issues relating to management competence. Order of March 6, 1980, CLI-80-5.
'114IA was admitted to the hearing to pursue two contentions-one dealing with faulty maintenance practices at TMI-1 and one l dealing with the Licensee's financial qualifications. Not until l
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_3-the Order of March 23, 1981, CLI-81-3 did the Commission remove all litigation of the financial contention from the ASLB hearing.
The hearing itself began in October, 1980, at which time TMIA was represented by attorneys. Counsel for TMIl. made frequent requests for assistance in the form of technical help, but was denied such '
assistance. Transcripts were delivered to TMIA until early December, 1980, at which time the Commission ordered that free transcript delivery immediately cease. TMIA was unable to afford transcripts thereafter. In Jeauary,1981, TMIA counsel was forced to withdraw from the proceedings due to the inability of TMIA to financially support them. At that time, a volunteer member of 24IA, with no legal, scientific or engineering background, with no previous involvement in the hearing or pre-hearing process, and recoEnizably unfamiliar with the hearing issues, took over as 24IA representative.
She continued to represent 'IMIA for the remaining six months of the hearing, and prepared proposed findings of fact and concinaions of law on management issues.
III. Standards for Assessment of Stay Request
'Under its most recent rules, the Commissicn shall order a stay "if it detemines that it is in the public's interest to do so, based on a consideration of the gravity of the substantive issue, a likelihood that it has been resolved incorrectly below, the degree to which correct resoluticm of the issue will be prejudiced by operation pending review, and other relevant public interest factors."
10 CFR Section 2.76h, h6E ED. REG. 28627 (May 28,1981). In assessing
-h-each of Aese criteria, the Commission may emphasize the criterion which it views as the most important in balancing the equities and serving the interest of justice, particularly in light of the peculiar circumstances of each case.
Vircinia Petroleum Jobbers Association v. F .P.C., 259 F.2d 921 (D.C. Cir., 1958). Under this rule, a stay is particularly appropriate in this case.
Certainly, the gravity of the substantive issue, that is whether management is cornpetent to operate Unit-1 safely, has been long recognized by this Commission. Doubt concerning management capabilities, as first expressed in the Commission's August 9,1979 Order, has since been reinforced by virtually every independent investigation examining the 7MI-2 accident, including NUREG-0600, NUREG-0760, the Report of the UR]'a 3pecial Inquiry Group (Rogovin), the Report of the President's Commission on the Accident at ihree Mile Island (Kemeny), as well as the U. S, House of Representatives (Udall) and U. S. Senate (Hart) Reports. Each of these reports conclude that management decisions had a definite role in the course of the accident, as well as conditions which ,
eventually led up to it. As the Court noted in United Church of ,
Christ v. 'F.C.C. , 359 P.2d 994 (D.C. Cir.,1966 ), when pa -
perfomance is in conflict with the public interest, a very heavy burden rest; on the applicant for renewal of a license to shov how renewal can be reconciled with the public interest. Certainly, nanagement's past performance at 7MI was certainly not consistent
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with the public interest, and whether management is now capable )
l of running TMI-1 in a ;afe manner is an issue of grave importance i entitled to the closer,t scratiny.
l The Board's decision below is fraught with deficiencies and !
l errors, including a lack of reasoned basis for many conclusions I dravta, a failure to adequately discuss evidence on major issues, and adoption of Staff and Licensee conclusions without support on extremely serious issues, particularly those mandated for considerw ation by the Commission in its March 6,1981 Order. Board actions during the hearing amounted to arbitrary and capricious conduct, c:sar abuse of discretion, and were contrary to law. 'Ihere is thus a strong probability that the Board's decision will not withstand appellate scrutiny. Helverine v. Taylor. 293 U. S. 507 (193 3),
Federal Radio Commission v. Nelson Brothers Bond and Mortgage Company, 289 U. S. 266 (1933); Northern P.R. Company v. Departnent i of Public Works, 268 U.S. 39 (192 5); touisville and h hvi l l e Ry.co.
v.. Finn, 235 U.S. 601 (1915 /; Chicago D. I, and P.'R a d twa y Co.
U.S., 27h U.S. 29 (192 7). We will discuss these errors below.
Correct resolutions of these issues will be severely prejudiced by operation of the plant pending review. Without a stay of this decision, the appeal process will be a time consuming and expensive exercise in futility. If this plant is permitted back on line and the requisite Pennsylvania Public Utility Commission approvals are obtained, the implicit pressure on the Appeal Board and eventually l on the Courts to moot the validity of management competence issues
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and order continued operati,xt will be unavoidable. The certainty of this happening seems quite obvious, yet who could benefit from a decision which will later be shown to be wrong, but the result of which may be impossible to alter? The Commission has a responsibility not to consciously frustrate the appeal process by forcing TMIA to exhaust our administrative remedies while at the same time fore-closing any opportunity for meaningful relief.
Further, the Commiaulon has a special duty in this case to the people surrounding this plant. Lest this Commission forget, the people in this area have already experienced the trauma of the worst coc:mercial nuclear accident in this nation's history. 'Ihe Commission must not permit operation until every effort has been expended to assure Unit-1's safe operation. We note the Commission has already broken one promise to the people in this area by virtue of its Order of August 20,1981, CLI-81-19, refusing to immediately rule on the merits of this case. But then to allow restart on the strength of this preliminary decision places the integrity of the ,
Commissioners and this entire process in doubt. At the very least, the public is entitled to have a reasoned decision before, not after restart.
Even more, however, the Commission has a responsibility to l
l prevent impending irreparable injury to the public which will flow from the inevitable delay incident to the prescribed appeal board i
proceas if restart is not immediately halted. As long as a real possibility exists that current management is not competent to run the plant safely, which can only be determined i
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7-upon proper review of this decision, the public's health and safety will be endangered. If the Commission permits this plant to reopen pending our appeals, and if another accident attributable to management incompetence should occur during that time, the Commission will have only itself to blame for the consequences, however dread-ful. As the Supreme Court stated in Scrim s Ifoward Radio. Inc. v.
P.c.c., 316 U.S. h, 9 (1942):
llo court can make time stand still. The circumstances surrounding a controversy may change irrevocably during the pending of an appeal, despite anything a Court can ,
do. Ibt within these limits it is reasonable that an appellate court s hould be able to prevent irreparable injury to the parties or the public resulting from a premature enforcement of a determination which may later be found to have been wrong.
7hus, for these reasons and for the reasons stated below, the Commission must conclude that by any standard, it is in the public's interest to stay the' immediate effectiveness of this decision.
IV. Errors in Decision relow A) The Decision in General Nfore documenting the legal and factual more rampant
, throughout this decision, we celieve w should first express what appears to be the decision's most basic flaw. The Commission has, since its August 9,1979 order and most recently in its August 20, 1981 order, expressed a justifiably deep concern over l the management competence issue. Certainly, management policies l
and attitudes affect every aspect of a nuclear power plant's l
operation. Thus, to have properly carried out the Comission's t
- 3 August 9,1979 Order, it was incumbent upon the Board to evaluate management issues in a broad context whether those issues concern specific management contentions, or issues mandated for consideration by the Commission.
Instead, however, the Commission will note upon reading this decision the narrow, compartanentalized look which the Board has given to these issues. A recurring problem is the Board's failure to connect evidence presented during one phane of the hearing to other aspects where it is directly relevent. The Decision itself noticeably fails to connect its various parts so that an overall picture can emerge. For example, the Board first examines the new management structure at G.P.U. and evaluates the proper quali-fications of each top manager within the new organization. Yet analysis of past performance of these individuals during the TMI-2 accident is completely disconnected from this section. As another ,
example, analysis of TMIA's specific contention is placed in the middle of this decision. Because of the specificity of the l
allegations involved, the contention was relatively easy to attack, not withstanding the fact that certain poor past maintenance practices were admitted by the Licensec and by the Board. Yet in its glorious approval of certain top managers within the maintenance organization, l the Board does not address the oW icus relation between the maintenance manager's past acceptance of poor maintenance practices and their current qualifications. As still another example, the Board avoids all mention of the proposed 1979 Operation and Maintenance budget
cut discussed in the context of TMIA's contention, in its examine tion of financial / technical interface. 'Ihus, we urge this Commission to examine this decision and the cited evidence in its totality, and not in the disjointed nature which the Board has treated it. We feel quite confident that the Commission will conclude that the decision betrays the Commission's and the public's concem for this most serious issue, and must certainly not pemit restart on the basis of this decision.
B) Errors in TMIA Contention 5 ,
- 1) Poor Past Maintenance Perfomance One aspect of 'IMIA Contention 5 related to the deferral of safety related maintenance and repairs beyond the point established by Licensee's own procedures (see Par. 271), but the Board also considered it important to evaluate on its own whether the alleged examples of improperly deferred safety related maintenance presented j by 'IMIA indicated a lack of attention on the part of Licensee to 1 .
I significant maintenance work at 'IMI-1. (Par. 290). The Board remarked l repeatedly during the course of the hearing that the various work I
I request exhibits were si 6nificant only to the extent they established
, a pattern of deferred maintenance. Tr. 303 7, 357h, 3577. Obviously then, each work request that 'IMIA attempted to introduce was impor-tant to its contention and to the Board's evaluation not only for its own individual significance, but for its value in helping establish a pattem. Some 'IMIA exhibits were withdrawn, but many l were rejected by the Board. See Initial Decision, Appendix A,
- p. N26-- b31. As exhibits were rejected, a pattern became more
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and more difficult to establish.
1 It is well settled that the discretion of an administrative agency must be exercised according to fair and legal considerations in accordance with principles of justice uu not in an arbitrary and capricious manner. In the case of National Airlines. Inc. v.
CAD, 321 F.2d 380, 383 (D.C. Cir.1963), the Court expounded upon this principle, holding that an agency may not act arbitrarily in excluding evidence for no reason. See also ULRB v. Capitol _ Fish Co.,
29h F.2d 868 (5th Cir., 1961). -
In this case, the Board was admittedly in need of help in detemining the relevance of specific work requests offered by
'IMIA. At Tr. 36052 Chaiman Smith stated, "we've come in with one work request after another, which does not fall down clean on one side or another, and I am antiMp ting the need for sane help."
Yet rather than obtaining clearly needed assistance, the Board prejudiced TMIA's case by arbitrarily rejecting specific work requests, or admitting them for limited purposes only. At Tr. 3727, Chaiman Smith stated, "the Board is not going to accept the exhibit and we're hard.put really to explain why. But there has to be a couple points I
somewhat subjective, somewhat arbitrary." Further, at Tr. 3732, Chairman Smith stated "there are no standards that have been pre-sented to us that we can reliably look to to see what the standard is to receive into evidence. So this is our ruling and it could very well be wrong. And we are not going to defend it anymore.
And we are going to go home pretty socm." We conclude that the
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Board was grossly arbitrary in rejecting relevant TMIA's exhibits
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offered into evidence. This is a clear abusive discretior. and the Board has +.huc unquestionably comnitted a reversible error of law.
Relative to the same tcpic, the Ibard in Par. 292 states that the parties, including TMIA, initially a(,wed to rely upon the expert opinion of Licensee witness, Mr. Joseph Colitz, to determine whether particular maintenance activities were safety related, and that only later did M IA disagree with his conclusions. The sig.-
nificance of the safety relatedness issue cannot be overemphasized, since the definition of safety relatedness went to the very heart of TMIA's contention as well as to the Board's interest in maintenance practices, and to Licensee's defense. The Board's interpretation of this paragraph is entirely misleading, and there is in fact compelling evidence on the record directly contra-dicting this assertion.
At Tr. 2575, mIA counsel clearly states that Mr. Colitz is to be called only to describe systems and components in order to enlighten the Board, so that the Board could justly arrive at its own . conclusions regarding safety relatedness. The basis for 'IMIA's objection to having Mr. Colitz define the tem was evident to all parties-Licensee's witness had an obvious self interest in defining the term safety relatedness as narrowly as possible. 'Ibe Board itself understood that TMIA may not have agreed with Mr. Colits's definition of safety relatednesc. Tr. 2577. Itrther, the Board rejected efforts by the Licensee to question Mr. Colitz on his i
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opinic,n as to safety relatedness, using E!IA's counsel's argument that to permit Licensee to elicit such testimony from 21IA's hostile witness would violate the law. Tr. 3121. Therefore, the Board's 1
findings in Paragraph 292 are totally unsupported by the record and factually incorrect.
TIIIA refutes the Board's statement in Paragraph 29h that TMIA offered no alternative means of determining safety relatedness.
At Tr. 2576, @!IA's counsel stated the following:
"And the remeny Commission in its findings in respect to, the accident at THI-2 concluded that there were components at the plant which were not identified as " safety related components" but which 11npacted upon safety related com-ponents, and because the maintenance on those components had been deferred, that the deferral was one of the pre-cipitating causes of the accident. Now, that is a con-clusion of the Mt.meny Commission, and from that standpoint safety related frcu our viewpoint has a much broader meaning.
And when we question Mr. Colitz, we intend to question him about the consequences of a particular component failing to operate cc,rrectly. That particular component itself may not be a safety related component, but if the failure of that component to operate correctly can result in a major safety problem et the plant, then we view it as safety related.
That is the approach that we are going to take." Further, l the Board's clear implication of bad faith on the part of M4IA is totally unwarranted and without support in the record. The Board was quite aware of ?!IA's inability to afford its own expert testimony, and of its displeasure of
~ having to rely upon Licensee's own employees to establish the i importance of certain ccanponents and systems. Tr. 2576, 2583, 3661, 380h. Both 24IA and the Board found the staff unable to help. Tr. 30 , 3900 These relevant facts were improperly ignored by the Board.
Par. 296 summarily concludes that Licensee's written testimony, submitted three months after presentatice of TMIA's case, satis-l l factorily indicates no significant improper maintenance deferral.
1 7he Board, by merely listing TMIA exhibits and the page number in w
Licensee's testimony" " discussed, so completely fails to infom the reader of the factual basis for these ultimate conclusions as to violate the basic rule of administrative law that requires "the crounds upon which the administrative agency acted be clearly disclosed and adequately sustained". SEC v. Chenery Corp.,
318 U.S. 80 (19h3). his is particularly serious in light of the often factually unsupported explanations by Licensee throughout this written testimony.
Further, the Board concludes in Paragraph 300 that no evidence exists from which to conclude Licensee has improperly deferred safety related maintenance. Yet the Board implies the opposite in Paragraph 298 and 299. In Paragraph 298, the Board concludes that WIIA Schibits 33 and 3h, dealing with air handling filters in the machine shop ventilation system, indicates that maintenance deferral on these items constituted a potential long run safety l problem. In addition, the Board's conclusion with respect to DfIA l
l E chibit h0, conceming a spurious alam situation, are quite
! contradictory and confusing. he Board again determines without any . perceivable analysis that the spurious alam creates no sigw nificant problem. RIIA's arguments regarding potential safety problems (See 91IA's Proposed Findings #16) were not discussed.
Not withstanding this fact, however, the Board concludes that "a delay of almost four years seems long in view of the fact that l it should be fixed eventually." While the Board may not have used l
l the tems " deferred maintenance," the clear implication of this l
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statement is certainly contradictory to the conclusion in Paragraph 300 Again, Paragraph 299's conflicting conclusions and failure to discuss 1NIA's arguments violates the rule that "the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained." J,.dd . We note similar problems in the Board's analysis of 7MIA Exhibit 23, at Paragraph 297, particularly a fail-ure to addreau 'l13A's concerns, and reliance without discussion upon the Staff conclusion that satisfactory administrative contro1r.
were in place. Wus we find the Board's treatment of these deferred maintenance issues violative of the most basic principles of administrative law.
The Board's treatment of Licensee's new system for designating priority maintenance work items is hardly sufficient to withstand appellate scrutiny. He Board's conclusion that assignment of priorities under the new system is " radically different" and that the definitions have " completely changed" is totally unsound and without factual support in the records.
Many problems associated with the old priority system are hit;hlighted in Paragraph 285 and 286 The past system by which priorities were assigned was admittedly unreliable, but the Board scarcely compares the old with the new system to provide any basis upon which to conclude the new system is radically different. In fact, the record indicates that the two systems are hardly different at all. Under the old system, the initiator of the work request would physically assign the priority designation, meaning that he wrote his designation on the work request. See Paragraph 285. However,
the Board fails to rnention that the initiator's imediate supervisor always reviewed the designation and always had the opportunity to physically change it. Tr. 267 7, 3076 (ThenewPriority1 definition merely writes this procedure into the definition).
As Plant Maintenance Manager Mr. Shovlin explained, when the work requests reached him, he also had an opportunity to physically change the priority. Ilowever, he testified that in fact, he lef t 90;f3 of the priority designations unchanged, and only 10% of these were in Mr. Shovlin's opinion incorrect. Tr. 30 82' !Ie <" 1 ,
physically change approximately 10%. In addition, Paragraph 286 explains that maintenance work was actually assigned through
" plan of the day" meetingu.
Under the new system, a practically identical process is in place. 11ow the initiator'kecommends" a priority designation, which means he physically writes his recommendation where indicated on the job ticket, but his superiors must approve the recormnendatian as before. The Plant Maintenance Manager or his designee now does the official " assign =ent", Paragraph 287, by so indicated on the -
job ticket form. So now, instead of crossing out a priority designation he believes improper, the Plant Maintenance Manager changes the priority by filling in another blank. Scheduling meetings are still the primary work scheduling tool. Paragraph 288 The process is virtually identical as before, with the only perceivable difference being one of form, not substance. The evidence certainly does not support the Board's conclusion that a radical change has transpired.
Regarding the new definition of priorities described in Paragraph 287, the evidence indicates that these new guidelines ,
are still not specific enough to eliminate subjectivity as the Board implies in Paragraph 285. On this point, in fact, the record contains direct evidence that the new Priority 1 definition is still unclear to even the Plant Maintenance Manager. TMIA Exhibits 17 and 18, discussed at Tr. 35h5 d. seq., concern a series of work requests dealing with excessive packing leakage on nuclear river pumps. While all dealt with the same malfunction, under the old system some were designated Priority 1A and some were not.
When asked whether the new priority system w:vald have eliminated l
this discrepancy, Mr. Shovlin's answer was, "I would probably indicate other than a Priority 1." (Daphasis added). We 1
emphasize that this question was asked of the very individual whose responsibility it is to assign priorities, and who clearly understood the malfunction under discussion. he uncertainty implicit in Mr. Shovlin's statement directly supports an inference that indeed subjectivity and opinion still play a large role in designating priorities under the new system. It is well settled that a fact may be derived as a reasonable inference from other facts without the necessity for independent proof. Radio Officers Union. C.T U. v. II.L.R.B., 3h7 U.S.17 (1954). The Board ignores this evidence and its reasonable inferences. hus, its conclusion that the new priority definitions have " completely changed" is worthless in that the record fails to disclose any significant imprc,vement over the old system.
-17 Bere is another strikingly important problem which the new priority system certainly does not solve, and which is entirely disregarded by the Board. his concems the lack of guidelines to assist individuals completing job tickets who must determine whether malfunctions have affects on nuclear safety. Not only does the new Priority 1 definition include items which are " nuclear safety hazards,"
but the new job ticket, as did the old work request, requires an individual to check a box indicating whether the work will impact upon nuclear safety. No where is this issue discussed by the , Board, despite DiIA's extensive treatment of this problem in its proposed findings. 'l!!IA maintains that no where in the record is this term sufficiently defined by the Licensee to possibly meet the require-ments of 10 CITt Part 50, Appendix B, and the record abounds with i
evidence that this is indeed a genuine problem. The Doard in fact recognized the problem in Paragraphs 300 and 305 (Footnote 27),
but remarkably does not pursue it, he Board seems to treat this merely as a record keeping problem. While the issue may not fit within the narrow confines of RIIA Contention 5, it certainly should be an issue of great concern to the Board, and the Board has grossly erred in not discussing it.
The Board failo to discuss other possibly faulty maintenance practices raised by RIIA in its proposed findings. For example, 3!IA faults the Licensee for having no set time frame for cortpletion of een the most serious ut .ntenance work, Paragraph 2814. While the Board ignores '1111A's concerns and seems to condone this policy, t
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it fails to consider that the new priority system requires the designator to make a detemination as to how quickly the mainten-ance work must be dene. Without some guidelines, such a detemina-1 tial decs not seem possible.
Secondly, the Board conveniently avoids confronting the issue of confusion as to when in 1980 the new priority system became effective, by stating "this system has been in effect at least sir:ce October 1980", Paragraph 2814. If the probleMereonly one of Mr. Shovlin's confusion under direct questioning, this surely reflects upon his individual competence. However, if the problem was confusion among the plant workers themselves, this reflects serious mismanar;ement within the maintenance department. Again the Board has arbitrarily failed to make a finding on an issue directly relevant to management competence.
Thirdly, the Board recot;11zes that TMIA has serious doubt whether Licensee's job ticket and new computer system will help solve Licensee's past record keeping problems. Paragraph 310 Yet not only are these concerns not discussed, but the Board seems only able to speculate that the new system will be effective.
Paragraph 310 So uncertain is the Board that in Paragraph 315, it proposes that the Staff inspect and evaluate the system six
! months after restart. (Emphasisadde*). Problems with the new system are inevitable. Licensee's most serious past record keeping problem, i.e., inaccuracy in completing jcb tickets and misplacement of paper work (TF1IA Proposed Findings M 6 and M 7) will clearly be i
exacerbated, he Board ignores these points, while suggesting that the public be subjected to six months of living near an operating nuclear power plant whose past maintenance practices were poor and whose current maintenance practices are possibly worse. Even more, the Board acknowledges other problems with the new system. Yet instead of requiring Licensee to resolve these problems, the Board simply mentions them as items worth noting. Paragraph 316-319.
'Ihis unexplained reluctanco by the Board to require Licensee to deal with maintenance problems they have observed,is clearly not in the public's interest, Until these issues are properly confronted and the problems adequately solved, the Consnission must not permit Unit-1 to restart.
Fourthly, the Board's dismissal of the estimated man-hour issue is inexcuseable. While the Board concludes the issue is unimportant, it fails to evaluate the logical impact of consistent miscalculation on staffing needs, particularly with regard to reciprocal staffing arrangements with outside contractors or other GPU companies. Tr. 13, $h6 Further, the Board recognizes that estimates are inclined to be low, but does not examine why this is so. 'Ihe Board's treatment of this issue is entirely inade-quate.
Finally, we find the Board's reliance on the staff's
" uncontradicted and unquestioned testimony" regarding auditability '
of 1978 maintenance recorde completely unsupportable. Paragraph 31h.
Based upon this testimony, the Board concludes that Licensee records
., under the old system were auditable. Yet in the same paragraph, the Board concedes that TIIIA has brought forward examples of inaccurate and incomplete maintenance records. But the Board fails to disclose on what basis they conclude that "none of the problems disclosed safety problems in the actual work." However, assuming that this is a Staff conclusion, we note the lack of any factual support in the decision to support this conclusion. "Even though a particular item of evidence is not expressly or directly contradicted, this does not prevent the trier from taking into consideration all the other relevant evidence including circumstances and surroundings that in any way might effect the weight or credibility of such evidence." Writeht v. Peabody Coal Co. 225 Ind. 679, 77
!!.E. 2d 116 (1965). Although the Staff's testimony may have been uncontradicted, its conclusory and unsubstantiated opinions should have been evaluated by the Board in light of other evidence indi-cating that safety problems were indeed apparent. Again, the Board has improperly evaluated the evidence on the record in these proceedings.
- 2) Proposed Cut in Maintenance Ihdget We strenuously object to the Board's statement in Para-l graph 321 that "the only basis asserted by '1HIA for (the conclusion that CIU management emphasized maximization of profits at the
! expense of safety) is any inference which could be drawn from the l
fact that GPU considered budget cuts, and would have imposed them, but for the accident." 'Ihis statement ignores TMIA's Proposed l
Finding //h3 which supports TMIA's concern that a maintenance budget
cut was ordered while poor maintenance procedures, record keeping problems, and excessive overtime policies were in effect at TMI, thus producing strong evidence that the cuta were not approached with due regard for safety. The roard's failure to recognize, let alone address the evidence in its decision is clearly arbitrary,
'd thus its conclusion rust be rejected on the basis of clearly contradictory evidence in the record.
- 3) Overtime Policies
% e Board treatment of TMIA's charge that Licensee used excessive overtime in the performance of safety related maintenance lacks any reasoned analysis of the questions raised. TMIA's asser-tion that overtime should never be permitted at a nuclear power plant where the risk of carelessness due to fatiE ve is probable, Paragraph 332, is peculiarly mentioned, but never confronted by the Board. See Wingo v. Washin.* ton, 395 F.2d 633 (D.C. Cir.1968).
%e Board continually emphasizes the need for some, even extensive, ove..ime in a nuclear pcuer plant, but never discusses the propriety of excessive overtime which is the basis of TMI)'s contention. We Board defends Licensee's position that overtime is necessary during outages, without discussing the fact that outside contractors may also be used during this time. Tr. 2688 The Board implies in Paragraph 334 that TMIA defines a very long shift as 3h or 60 hours6.944444e-4 days <br />0.0167 hours <br />9.920635e-5 weeks <br />2.283e-5 months <br />.
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No where in the record doas TMIA limit itself to such an extreme definition.
Further, the Board reject? the testimony of all three witnesses as unreliably subjective a 'act, much of the testimony was l
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consistent. All three testified that extreme cases did exist. 'That some people worked overtime to make extra money, that at least rumcrs of complaints concoming excessive overtime existed, that the longer someone worked the more fatigued they became, and that '
Licensee did not limit the amount of overtime which cyuld be worked per week. Two witnecces testified that manager.ent routinely placed a letter in the file of an individual who did not work required overtime. Clearly, the Board cannot arbitrarily reject these items of evidence. West Ohio Cas On. v. P.U.C., 29h U.S. 79 (1934),
Taltimore and 0.R. Co. v. U.S. , 26h U.S. 258 (1923).
There were also instances where the three differed in their analysis of overtime at TMI. Mr. Reismiller, raised a number of points which neither It , Eberle nor Mr. McCurdy raised. Certainly the Board could have properly analyzed the credibility of each of these witnesses in its decision. In doing so, the Leard could have concluded that Mr. McCurdy's testimony lacked credibility in that he is now manageat and in fact schedules overtime himself.
Instead '.ovever the Board summarily dismissed the testimony of all three as " subjective." Not only is such wholesale dismissal clearly art,itrary, but the Board ignores many lasues which Mr. Reismiller in particular seemed to raise, which were of concem l
to 'IEIA. For example, did Licensee coerce its employees into l
l overtime by placing a letter in their files if they refused?
Were guidelines exceeded, either with or without the cooperation of the employee? Were safety meetings cancelled during outages?
What response did management have to union complaints?
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How much notice did Licensee require for sick leave?W ere people fatigued after 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br /> of work seven days a week? Such questions were never properly answered by the Board. In addition, IE Circular 80-02 establishing new guidelines clearly does not moot any of these questions as the Board alleges in Paragraph 3143.
If the Board chose not to believe these witnesses, it quite definitely abused its discretion in cancelling the other two scheduled witnesses, or in not conducting a sua sponte Doard inquiry into the matter. Certainly the Commission cannot permit this most important safety issue to be ignored by letting this unsatisfactory decision stand.
C) Board Issue (/>)-Financial / Technical Interface
'ihe Board was instructed by the Commission to examine whether Metropolitan Edison Company would permit financial considerations to have an improper impact upon technical dec. ions. The Board relied almost exclusively apon the testimony of Mr. Herman Deickamp, President of GPU, in evaluating this issue, supported by Staff conclusions which were primarily based upon interviews with GPU management individuals. Tr,1205). Interviews with Licensee's management personnel, and the testimony of Mr. Deickamp are rather self-serving and therefore less than reliable on this issue.
(We note thst the Board had a clear duty to at least permit effective cross examination of 17. Deickanip during the hearing, but instead, the record indicates that the Board interfered with cross examina-i tion to such an extent that it was eventually cut off. See Tr.
13512-135115. This was a clear abus discretion on the part of the Board). ,
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It was a clear error of judgement and an abusive discretion for the Board to rely exclusively upon this unreliable evidence to support its conclusion that financial considerations will have no improper impact upon technical decisions. Firs t Girl. Inc. v. '
Recional Manpower Adngistration of U.S.D. of L., h99 F.2d 122 (7th Cir.,197h). The Board had previously heard other testimony directly relevant to this topic concerning the issue of excessive overtime-such evidence directly contradicting Mr. Deickamp's assertions that Licensee would willingly shut the plant down if financial situations warranted it, (TMIA Proposed Finding #39),
and)k proposed 1979 Operation and Maintenance budget cut which would have been implemented but for the accident. (?!IA Proposed Findinge #h2-h7). %e Board should have at least examined and discussed this relevant testimony in the context of this Board question. heir failure to do so is a significant error.
In light of Mr. Deickamp's self-interest in this matter, and previous overtime and maintenance cut testimony, the Board should also have closely examined Mr. Deickamp's conclusory remarks that at GPU safety always takes procedence over economics. (Paragraph 391, 392,393,Tr.13h97,13498). '1his he supports by boasting of increased manpower and financial expenditures at GPU. However, Paragrapb 398 of the decision cites statistics which could in fact support conclusions directly opposite from those the Board has drawn.
%e fact that manpower levels and Operation and Mairatenance expen-ditures are high relative to the industry could merely, said quite logically mean . hat the Operation and Maintenance Departments are
inefficient, or that the equipment is in much greater disrepair than in most other plants. The Board does not consider this viewpoin t. Arther, the Board also fails to consider that diverting a large share of the budget to inhouse manpower is meaningless with-out some evidence that the plant would benefit from this policy.
Indeed, the plant may very well benefit more by increasing T4W personnel support. Further, using the industry norm as the standard for comparison in Paragraphs 398 and 600 is useless without some evidence indicating what the industry norm is. In fact, the only evidence we have in the record indicates what the industry norm was prior to the TMI-2 accident-and it was not particularly good.
Tr. 1210h. With no evidence that the industry norm has improved, these ce parisons are certainly unreliable to support the Board's conclusion in Paragraph h01. Thus, we find the evidence as examined by the Board on this issue inherently unreliable and irrelevant, and thus totally unsupportive of the Board's conclusion. The Board has clearly not fulfilled its oM igations to the Commission in evaluating Board Issue #6 D) Board Issue (1)-Licensee's Fanagement Structure By Commission mandate the Board was ordered to evaluate Licensee's corporate structure and TMI-1's plant structure to insuru that Unit-1 could be operated safely. The Board's decision relies exclusively on Licensee's and Staff witnesses and concludes that Licensee's corporate structure is indeed appropriately organized. While the Board may have assumed that Licensee and Staff witnesses produced I
a balanced record on this topic, Tr. 19996, we believe the Commission's mandate placed upon the Board the obli p tion to inquire well beyond the self-serving, rubber stamp endorsements of the Licensee and Staff witnesses. As far as Staff testimony on this issue,which the Board uses to support its findings, we found that each witness lacked even minimum management expertise to provide reliable testimony.
For example, the authors of NUREG-0731 on which the new GPU manage-ment is based, admitted under direct questioning that they had had no management training and were unable to say that the new structure was the optimum for GPU. Tr. 11991, . Yet the Board dismisses this as an insignificant criticism in Paragraph 6h. 'Ihe Board also relies upon the endorsement of Mr. Richard Keimig, Paragraph 60, yet ignores 'IEIA's point that he lacks any management training or background ('iHIA Reply Findings #3). Further, the Board ignores TMIA's skepticism that Mr. Donald Haverkamp, whose endorsement is cited by the Board, is either a qualified expert or an objective witness. ('IMIA Reply Findings #3).
The Board also relies quite heavily on Licensee's expert witnesses to support its conclusions. The Board fails to discuss Mr. Lee's obvious objectivity and credibility problems, stensning from his prominent position in the nuclear industry and his interest in promoting nuclear power. Mr. Lee's " expert" testimony, on which the Board relies in Paragraph $6, consista merely of unsupported conclusions which under principles of administrative law should be entitled to very little weight. Market St. R. Co. v. Railroac' Commission,32hU.S.$h8(19$). The Board also relies quite l
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heavily on the endorsement of Mr. William Wegner of EETA, despite his noticeable lack of management training or experience. Wegner FF. 9t.1328h, Attachment 1. Further, the Board accepts Mr. Wegner's reasons for endorsing the CPU structure notwithstanding the many questions left open by his analysis. Paragraph 52 For example, the Board makes no inquiry as to why combining the technical resources of the various GPU utilities resolves problems, or what benefit there is to uniform policies between diverse plants. The Board merely accepts his and the other Licensee and Staff witness'
" expert" conclusions. We are quite confident thatif the Board so chosen, it could have found other experts to render a less positive endorsement of the new GPU structure. See in Delaware L. and W.R. Co. v. Hoboken, 10 N.J. h18, 91 A.2d 739 (1952).
The Board's reliance upon theue people to evaluate the com-petence of individual managers, however, is much more problematic.
We believe the Board was extremely lax in its analysis of the competence of many top management personnel. We first question the relevance of the Board's statement in Paragraph 59 that
" individual members of the management organization appearing before us seemed to have a clear understanding of their respon -
sibilities, limitations, and resources available to them."
Clearly, the fact that the Board saw these people is not sufficient to prove their competence. But even if they do understand their responsibilities, past experience indicates that certain indivi-duals may be unwilling to properly carry out their duties.
Indeed, the record is replete with evidence concerning a number of individuals endorsed by the Board in this section. For example, consider Mr. Daniel Shovlin, Plant Maintenance l4anager. In discussion of TMIA Contention 5, Licensee admits that the pc.et maintenance department under Mr. Shevlin's direction was inadequate.
In its present endorsement of Mr. S'iovlin, however, the Board fails to even mention his past experience or his possible role in the developmert of prior maintenance problems at 'IT4I. "ach first hand, direct evidence wculd be significantly more meaningful in evaluating his competence than a recitation of his resume (Paragraph 156), or the vague, innocuous statement by the Staff that senior management at TMI and GPU are "probably above the norm," or the similarly general endorsement by BETA under its objective standards. This criticism applies equally to each individual whom Licensce endorses between Paragraphs 116 and 162. However, our lack of familiarity with some of these individuals prevents us from comparing their past histories to the'.r present qualifications. 'Ihe Board, however, has been clearly derelict in its duty to meaningfully analyse competence of these individuals by conducting such a thorough examination.
There are, however, a number of individuals in the current GPU management structure who were involved in some way with the Unit 2 accident. P.ather than merely examining their resumes, the Board clearly should have studied thoroughly their qualifications as reflected by their past performance or currant ability to handle emergencies. Thus, we will so discuss their qualifications in the context of Board Issue 10.
E) Board Issue 10- Licensee's Management Response' to the Unit 2 Accident There is perhaps no other Commission Issue which has been treated so arbitrally and capriciously by the-Board than this oae. We sensed an annoyance on the Board's part l by having to examine the issue at all, Tr. 12,053, and the Board admittedly did not approach the issue with a ftim idea of how to best pursue it. Tr. 12,053. However, the Board was mandated to examine management compete,ncy today in terms of management performance during the accident, and certainly their duty was to resolve any doubt that deficiencies in handling the accident by management or by any individual member thereof have been corrected.
The information available to the Board on this topic was not nearly as massive as that available on the other issues involved in this heating. There were a finite number of reliable investigations available with which the Board admits to having been generally familiar. Par. 469. In addition, e number of invidual members of CPU's top management who were involved with the accident or its aftermath testified at the hearing on various issues. But many individuals who were directly involved with the accident were never called by the Board to testify.
Licensee's expert witnesses on the issue were inherently unreliable, particularly in light of the contradictory information available in t .e various official investigations.
l Mr. Lee who was of the opinion that Licence's management responded to the accident with " great skill and steadfast )
purpose" did not even arrive on the scene until fully one
. week after the accident was over. Par. 465. Mr. Wegner, who similarly conducted no reliable investigation into the accident, primarily blames the entire industry for thee accident rather than individual performance. His impressions also contradict the conclusions of the official investigations, and thus his factually unsupported opinion thatGPU now has sufficient management and technical capabilities to permit restart is entitled to little weight. Finally, Licensee employees, Messrs. Keaton and Long, who were only involved in post-accident events, offered entirely self-serving testimony, the credibility of which the Board itself cast doubt upon. Par. 466.
Thus, the evidence to support Licensee's view that management acted competently during the accident is utterly unreliable and the Board is clearly in error to rely upon any of this testimony. First Girl Inc., v. Regional Manpower Administration of U.S. D. of L., 'i99 F, 2d 122(7th Cir., 1974).
Thus, the Board had a responsibility to investigate this issue in light of the exhaustive NRC, Congressional, and Presidents's Commission investigations which have been produced, and also by a thorough look at those management individuals cited as incompetent by those official irvestigations.
Further, the Board had to consider whether any of these individuals proven inadequate have remained in management positions, particularly positions where they could have an
impact upon the public's health and safety.
The Board devoted a great deal of attention to management communication problems and reporting failures during the accident, particularly with regard to whether information was withheld from State and Federal officials. NUREG-0760 concluded that while Licensee was "not fully forthcoming,"
information was not intentionally withheld. The Board did, however, examine other investigative reports, including the Udall report which did conclude information was intentionally withheld. (Unlike NUREG-0760, the Udall report was not admitted into evidence, despite TMIA's efforts).
All the various investigations seem to agree on the following points: that those on-site were extremely confused and uncertain as to how to handle the crisis, that they misinter-preted signs and took inappropriate actions, but that they knew the situation was serious.
The Board decision first focuses on the briefing at the Lt. Governor's office at 2:30 P.M. However, we note that the Board fails to discuss the fact that in an early morning converstion with Met-Ed official Mr. George Troffer in Reading, Mr. Gary Miller, Station Superintendent and in control on-site at that time, c.dmitted to deliberately ,
withholding certain '.* ital information from a State official.
Staff Ex. 5, App. B st 109-2. This individual b presumatly Mr. William Dorsife, a nuclear engineer with the Commonwealth.
The Board however unreasonably concludes that further inquiry into Mr. Dornsife's knowledge at.that timd8bnnecessary. Par. 476.
Further, we can reason'ab Dr inf er tha t when Mr. Jack Herbein
I arrived, who was Vice-President for Generation and the first senior management official on the scene, Miller completely briefed him on this and other conversations.
Herbein chose to keep Miller in charge on-site. Yet the Board ignor es the serious implications of Herbein's decision at this point.
Further, the Board remarks in Par. 496 that, as most investigations conclude, Herbein made a wrong decision to remove Miller at 2:00 from the site to accompany him to the Lt. Governor's briefing. But the Board never seems to fault Herbein for this decision; cither.
NUREG-0760, at 42-44, also indicates that Herbein, the principal spokesperson at the briefing, deliberately downplayed the seriousness of the accident and lied concerning ofisite releases of r adiat ion. The Board seems to skirt the secord issue implying it is hearsay. Par. 475. Yet it is well settled that hearsay is admissible evidence in administativt law proceedings, Willapoint Oysters, Inc. V. Ewing, 1 74 F. 2d 676, cert. den. 338 US 860, reh. den. 339 US 945 (1949),
and the Board's wholesale dismissal of such a serious lie is totally unfounded.
As far a Mr. He6 eins 's role, the Board's response is equally inexcusable. The Board blames the intervenors for not litigating the issue. The Board is completely unjustified for blaming the intervenors for~not litigating this or any other issue which the Board is required to consider. (See Pr. 506). It can not hide behind the inability of unfunded intervenors to put an entire case together
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(which the Board admits would require the additional testimony of ten individuals, at least, Par. 491), to develop a record on an issue which this Commission has mandated the Board to censider. The Commission should view the Board's canciusion in Par. 491 as a total abdication of its responsibility to the Commiesion and the public. What issue could possibly be more important than whether Licensee has placed an iadividua) in a top nuclear safety related position, 3d in lina as Emergiincy Support Director, who has deliberately lied,and misled State and Federal officials dur an emergency situ 9 tion?
Further, the Board arbitrarily dismisses the conclusions of the various investigative reports seemingly because they differ. Par. 489. A closer examination shows that these reports are not really so different at ali. Again, instead of pursuing vhat appears to be minor inconsis.tencies, the Board abdicates from its responsibilities so it n e e d n '.t
" speculate." However, the Board does its own s p e r.u la t io n in Par. 477 in its analysis of whether there was indeed intentional withholding of information. The Board fails to discuss one of the most logical motives for intentional withholding- i.e. the desire by management to try to control the situation before its seriousness is discovered. This is not necessarily a malicious motive, but rather one of calf protection. To conclude that they merely misunderstood
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the severity of t u, 41tuation is to ignore the fact that they knew something serious was wrong- a conclusion which no j investigation refutes.
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- i The principal fault with the Board's decision on this issue, in fact, is thefailure to examine how individuals interpreted what exactly was going on on March 28, 1979, i
why things'were misundersood, how they handled what was happening, why they responed inappropriately, and what 4
was , in their mind, their primary concern. .Each of the investigations which the Board has read concluded that individuals responded inappropriately to the open PORV, the not-leg temperature, the thermocouple data, and the pressure i
spike. Middle level management individuals misinterpreted these signals, many of whom are still significantly involved with the operation of TMI- including Gary Miller who was primarily responsible for these 'nappronriate responses.
See amended decision, Par. 47'- It took fully 16 hour1.851852e-4 days <br />0.00444 hours <br />2.645503e-5 weeks <br />6.088e-6 months <br />s-before a relatively stable coc1Ang mode was achieved, and t
'9r the plant personnel to be certain o1 what was happening.
Meanwhile, top level management had'become directly
- involved by 11
- 30 A.M. when Herbein arrived. Par. 480.
1 There was confusion and uncertainty at the plant about what to do, yet Herbein elected to remain off-site, without a personal on-site inspection. (TMIA Reply Findings #27). ,
( No regulation or policy Lequired such action on his part. _
'l e t the Board does not choose to examine the intelligence of Herbein's decision, and .ever questioned him for his reasons. Certainly by the time of his arrival, the various l investigations indicate that key indications of a serious g-=r -e -^ -
-v- - - - g m, 9 3 _ . _ _ _ _ , , _ _, ,_ ._ _ , . _ _
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situation were known by Herbein's on-site communication link, Miller, although all signs were not properly interpreted by Miller. See NUREG-0760. In Par. 481, the Board indeed notes that Herbein was given information that high thermocouple readings were obtained. Was Herbein's decision n o t to insert himself into the chain of command" really due to his own inability to understand what these key 'ndications meant and how to respond? This is not an unreasonable inference, and the Board certainly had a duty *- inquire-particularly in light of the fact that the Licensee has rewarded Herbein with the position of Vice President in charge of Nuclear Assurance, as well as the position of 3d Emergency Support Director.
The Board's treatment of management's response as it related to their competence in handling the accident, is ninimal. They do cite the Rogovin Report conclusion that "the inablility of the utility's management to comprehend the severity of the accident... was a serious failure of the company's management. Par. 483. But the only other discussion can be found in Par. 468 which cites the IE conclusion that l no noncompliance items remain open. This provides no factual support for the conclusion that management now has the technical competence to understand and properly cope with an accident.
Further, Licensee's choice for its 2d position in the Emergency Support Director chain of command is Mr. Phillip l Clark. Mr. Clark has "no in-depth knowledge cf the specific l
l l design functions of B&W pressurized water reactors." Tr.II,520.
And in light of Herbein's past performance, we believe i
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', Licensee's decision to choose these individuals for such a critical positionan extremely serious reflection on their concern for the public's health and safety. Licensee's committment to put these individuals through a 36 hour4.166667e-4 days <br />0.01 hours <br />5.952381e-5 weeks <br />1.3698e-5 months <br /> training course is absurdly incdequate, although the Board seems to think it is sufficient. (The Board seems also to think that Herbein's chances of actually becoming the Emergency Support Director are slim. pna disagree. An emerg acy situation is likely to last more than 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> and as such will require at least 2 or 3 individuals to take control at various times). We believe the Commission should find this training program totally inadequate, and a clear indication of a lack of concern by the Licensee on this most crucial issue. Clearly, on the state of this record, management is not competent to run Unit 1 safei; The inadequate treatment by the Board of this issue .8 clearly violative of the public interest.
IV Relief Sought For the above-stated reasons, we request that a stay be granted to protect the pu'lic health and safety until these issues can be properly resolvsd through the appeal process.
We further request the Commission to exercise its option to review the mer it s of these particular issues, pursuant to 10 C.F.R. 2.764. We believe it will not be'possible for this Commission to make a proper stay decision without examining the merits, and in light of the Commission's concern over management issues, and considerefng that the Commission has ample time to look at these issues before tW rest of the
the MLB's initial decision is rendered in November, we submit that this is a reasonble request under the perculiar circumstances of this case.
Respectfully submitted, l
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i r) f Awh </W II 1
i Louise Bradford
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l Dated: September 11, 1981 TMIA i
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