ML20027C570
| ML20027C570 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 10/14/1982 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| CLI-82-31, ISSUANCES-SP, NUDOCS 8210180180 | |
| Download: ML20027C570 (10) | |
Text
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SERVED 00T151932 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 000ElEE she.
COMMISSIONERS:
2 En 14 P5:17 Nunzio J.
Palladino, Chairman Victor Gilinsky John F. Ahearne 0:, L une; -
Thomas M. Roberts D'i v b a ' S E Ea '
3RA"'
James K. Asselstine
)
In the Matter of
)
)
METROPOLITAN EDISON COMPANY
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Docket No. 50-289 SP
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(Restart)
(Three Mile Island Nuclear
)
Station, Unit No. 1)
)
)
MEMORANDUM AND ORDER CLI-82-1L_
The Commission in conducting its immediate effectiveness review of the Licensing Board's July 27, 1982 Partial Initial Decision (PID) in this proceeding has decided that two items require immediate clarification:
(1) the Board's imposition of a $100,000 fine on Licensee; and (2) the Board's recommendation that the NRC conduct an investigation into a possible material false statement by Licensee.
After considering these matters the Commission directs (1) that the Office of Inspection and Enforcement determine whether a civil penalty proceeding should be instituted against Licensee for acts uncovered in this proceeding, and (2) that the Office of Investigations investigate the alleged material false statement.
Because the Commission believes these matters should be resolved outside of the context of this adjudication, the Atomic Safety and Licensing Appeal Board which is reviewing the July 27, 1982 PID B210180100 821014 PDR ADOCK 05000289 j
O PDR
2 is not to consider either of these matters in its review.
I.
The Monetary Penalty The Licensing Board imposed a monetary penalty on Licensee because its management negligently failed to safeguard the integrity of its examination process, because it failed to instill an attitude of respect for the company and NRC examinations process, because it failed to assure the quality of training instruction and because of negligence in the procedures for certification of candidates for the NRC licensing examinations.
PID at 177.
The Board stated that "[t]he amount is not the result of mathematical calculation nor was it arrived at with the Commission's guidelines on Civil Penalties.
This is a remedial, symbolic penalty intended to attract the attention of all interested parties."
Id. at 178.
The Board found that this was "a long-term remedial action.
[that] need not be imposed before restart."
Id.
The Board recognized that there could be a dispute over its jurisdiction to impose a penalty and asserted that if its " jurisdiction should be found wanting, this action should be regarded as the Board's recommendation."
Id.
The Commission has determined that the Board did not have jurisdiction to impose this penalty.
There is no indication in the Commission's August 9, 1979 Order which established the Restart Licensing Board that the Commission had given the Board authority to impose a fine.
Nor do the NRC's regulations contain any provision conferring jurisdiction on Licensing Boards to impose fines sua sponte.
The Commission does not interpret the delegation of power to the Board to
"[t]ake any other action consistent with the Act, this chapter,
3 and sections 551-558 of title 5 of the United States Code," 10 CFR 2. 718 (m), as conferring such authority.
The powers granted by that section are those necessary "to conduct a fair and impartial hearing according to law, to take appropriate action to avoid delay, and to maintain order."
Imposition of a civil penalty und r the circumstances here does not fall within the intent of 10 CFR 2.718.
Similarly, 10 CFR 2.205 (a) confers the authority to institute a civil penalty proceeding only upon the Director of Nuclear Reactor Regulation, the Director of Nuclear Material Safety and Safeguards and the Director, Office of Inspection and Enforcement.
A licensing board becomes involved only if the person charged with violation requests a hearing.
See 10 CFR 2.205 (f).
Finally, section 234 of the Atomic Energy Act, 42 U.S.C.
2282(b), and the Commission's regulations, 10 CFR 2.205, set forth procedural requirements which must be followed prior to imposition of a civil penalty.
A person subject to imposition of a fine must be given written notice of (1) the specific statutory, regulatory or license violations, (2) the date, facts l
and nature of the act or omission with wnich he is charged, and (3) the proposed penalty.
The person subject to the fine must then be given an opportunity to show in writing why the penalty should not be imposed.
None of those steps were followed here.
Indeed, the Licensing Board recognized "that the Licensee was
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not notified that a penalty might be assessed and has had no opportunity to address it."
PID at 178.
That part of the Board's opinion imposing a monetary penalty is therefore vacated.
With regard to the Board's alternative proposal, that the penalty be treated as a recommendation, the Commission has decided to refer the question to the Director, Office of Inspection and Enforcement for a recommendation to the Commission on whether a civil penalty proceeding should be instituted.
The Board's recommendation can thus be examined under appropriate agency procedures outside of this adjudicatory proceeding.
The Director in considering this matter is to rely on the record of this proceeding and other currently available material.
If the Director should find that additional investigation is required to reach a decision whether to institute a proceeding, he is to refer this matter to the Office of Investigations.
The Commission is not by this referral expressing any viewpoint on the merits of the Board's recommendation.
II.
The Alleged Material False Statement The Licensing Board also recommended that "[t]he Commission direct the NRC Staff to conduct an investigation into the August 3,
1979 certification of VV to the NRC for operator's license
s 5
1 PID at 181.
The Board had concluded that the renewal.
TMI Station Manager, with the knowledge and assent of a Met Ed Vice President, " falsely certified to the NRC that VV had attained a score of 89.1% on Section A, Principles of Reactor Theory, when in fact each of them knew that VV had not attained that score."
Id. at 124-25.
This incident occurred prior to the cheating which led to the reopening of this proceeding.
It also involved a TMI-2 employee.
The Board, in discussing the questions of remedy and jurisdiction, noted that this episode had an indirect relevance to its jurisdiction in that it related "to the competence of Licensee's management, Licensee's certification procedures, and Licensee's policies to deter cheating."
PID at 126.
The Board further noted that its proposed remedies would require continued NRC activity after its jurisdiction passed.
The Board therefore approached the matter by making recommendations rather than ordering relief.
In this connection the Board set out its views on how the investigation should be conducted.
The Commission agrees with the Licensing Board that there is reasonable cause to inquire further into this matter.
The Commission's Office of Investigations has already commenced an investigation.
That Office is not bound by the suggestions of the Licensing Board, but rather will use its expertise in 1/
By stipulation between the parties some individuals were identified by letter designation to protect their privacy.
VV was a TMI-2 Supervisor of Operations.
He was removed from his operational job as a result of this incident.
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conducting this investigation.
The Commission believes that creation of this new Office since the Licensing Board issued its opinion should alleviate the Board's apparent concerns whether staff could conduct a thorough, objective investigation into this matter.
The Licensing Board separated this incident from the bases for the monetary penalty.
The Commission agrees that this investigation should be conducted separately from the inquiry by the Office of Inspection and Enforcement into whether a civil penalty proceeding should be initiated.
The Office of Investigations is to provide its findings to the Office of Inspection and Enforcement, who will provide the Commission with a recommendation on whether any further action should be undertaken.
Commissioner Gilinsky dissents from this decision.
The separate views of Commissioners Gilinsky and Roberts are attached.
It is so ORDERED.
cfA For the Comm ssion*
nx en (.*a s
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I f,
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']f f UPA Tf [e
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SAMUEL J CHILK 9P SecretaryofhheCommission
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Dated at Washington, D.C.
this day of A4 1982.
- Commissioner Roberts was not present when this Order was affirmed, but had previously indicated his approval.
Had Commissioner Roberts been present he would have affirmed his prior vote.
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SEPARATE VIEW 0F COMMISSIONER ROBERTS I do not believe that Commission orders ruling on legal questions in adjudi-catory proceedings need to be accompanied by separate views responding to every dissenting opinion of every Commissioner in order to be sound and complete. When misleading and inaccurate statements about persons and companies unable to respond effectively to such statements are made in these dissenting opinions, however, I believe that accuracy and fairness require a response.
Such is the case here.
I would not have written this separate view but for statements made in Commissioner Gilinsky's view. With this end in mind, I will list a few facts the reader should remember when reading Commissioner Gilinsky's view.
The first deals with Commissioner Gilinsky's assertion that the Commission refuses to confront the issue of the competence of GPU to operate TMI Unit 1.
It seems that whenever the Commission does not agree with the manner in which Commissioner Gilinsky wishes to resolve an issue, the Commission is subjected to the charge that it is not " confronting" the issue.
Nothing could be farther from the truth on the question of GPU management competence. As Commissioner Gilinsky doubtless recalls, the issue of management competence was vigorously litigated in an adjudicatory hearing. The Licensing Board's initial decision on this issue alone comprised 339 pages.
The Board con-cluded that GPU had demonstrated the managerial capability and technical resources to operate Unit I while maintaining Unit 2 in a safe configuration.
When arguments were made that alleged cheating on the part of operators evidenced management incompetence, the NRC investigated the allegations and i
2 held an adjudicatory hearing on the issue. Again, the Licensing Board found there was no evidence that GPU's nanagement encouraged or condoned cheating on flRC or company-administered examinations. Most recently, arguments have been made that the 1979 certification of a reactor operator as qualified to take the NRC examination when portions of a GPU examination taken by that operatcr were completed by another operator evidence management incompetence.
The Commission has directed the Office of Investigations to look into this incident. The above actions hardly comprise the record of a Commission
" refusing" to confront the management competence issue.
With regard to the $100,000 fine, the Licensing Board which suggested the fine recognized itself that it might not have the authority to impose a monetary penalty.
Not only did the Licensing Board.ot have the power to penalize monetarily GPU but none of the requirements of the Administrative Procedure Act, the Atomic Energy Act, and the Commission's Regulations were complied with by the Board. At this stage, it has not even been determined that there has been a violation of any legal requirement.
To endorse or disavow a $100,000 penalty at this time, without adherence to any of the applicable laws, would hardly be a reasoned and responsible decision.
With regard to the implication that GPU tolerated cheating, I would note that the two persons found by the Board to have cheated have been fired and that the two persons suspected of cheating by the Board have been suspended without pay for two weeks.
Moreover, I quote from the Licensing Board opinion of July 27, 1982:
There is no evidence whatever that the large majority of the TMI-1 operators lacked competence and integrity.
They have good cause to be unhappy with their treatment.
W 3
Although the Commission appropriately acted in the broader public interest, the effect of the Notice of Hearing in this case was to void the full-power operator licenses of all. the TMI-1 control room staff without the scarcest element of due
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process.
The need to take the second NRC reexamination in October 1981 wiped out the benefits fairly earned by the honest candidates who passed the April reexamination.
The entire proceeding with respect to examination integrity, although necessary, has been demoralizing, unfair to the honest operators, and, we are concerned, it nay have been a distraction from their duties as control room operators.
Partial Initial Decision (Reopened Proceeding), July 27, 1982, p.
180 (emphasis added).
With regard to Commissioner Gilinsky's assertion that the Commission has been timid regarding the Licensing Board's finding that "the Station Manager and a company Vice President knowingly falsely certified to the NRC that a reactor operator was qualified to sit the NRC licensing examination," I note first that the Commission has directed the Office of Investigations to look into this matter and second that this direction implements the recommendation of the Licensing Board.
Furthermore, I would note that it is not clear that a material false statement has been committed. The Licensing Board, in noting that a number of uncertainties exist about the incident and that the Station Manager was not a party to the cheating proceeding in which the incident was raised, recommended that he be given an opportunity to answer questions.
It also recommended that a number of other people be interviewed for more information. Again, Commissioner Gilinsky urges precipitous action on tha part of the Commission befora all the facts are known in reaching a serious onclusion.
Finally, as an aside, I note that I do not share the belief expressed by the Commission in the first paragraph on page 6.
s SEPARATE VIEWS OF COMMISSIONER GILINSKY Today's decision is but another example of the Commission's refusal to confront the issue of whether GPU is competent to operate TMI Unit 1.
The Commission cannot even bring itself to decide whether to endorse or to disavow the Licensing Board's symbolic fine of $100,000 chastizing the company for its tolerance of cheating by its employees on NRC exams.
The Commission has been equally timid with regard to the Licensing Board's finding that the TMI Station Manager and a company Vice President knowingly falsely certified to the NRC that a reactor operator was qualified to take the NRC licensing examination.
The Commission should have taken direct review of both matters, giving particular att9ntion to the Special Master's recommendations.
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