ML20039D452
| ML20039D452 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 12/30/1981 |
| From: | Wagner M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8201040105 | |
| Download: ML20039D452 (15) | |
Text
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Staff 12/30/81 3
,.o UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIDH
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BEFORE THE AT0flIC SAFETY AND LICENSING BOARD AND SPECIAL ftASTER I
In the Matter of
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METROPOLITAN EDISON COMPANY, ET AL.
Docket No. 50-289 (Restart) d' (Three tiile Island, Unit 1) 64 D
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NRC STAFF'S RESPONSE TO PARTIES' COMMENTS
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@I% /A ON HPI DOCUMENTS
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I.
Introduction By. Memorandum and Order dated December 16, 1981, the Licensing Board adopted as its order and as the Order of the Special Master the Licensee's proposal concerning the high pressure injection documents
("HPI documents") as described in the December 16, 1981 letter by Licensee's counsel to the Board and Special Master.
The HPI documents concern questions and answers on the October 1981 NRC written and oral examinations relating to throttling or termination of HPI, and Licensee's emergency procedures relevant to these questions. The December 16 order allowed the parties until December 24, 1981 to file with the Board and the Special Master comments on (1) the Licensee's proposal, (2) the significance of the HPI documents and (3) the relevance of the HPI documents to the reopened hearing or to any other issues in the TMI-1 restart p,roceeding. The Staff. Licensee, the Aamodts and UCS filed comments in accordance with that order.
The order further allowed the 56 7 s
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parties until December 30, 1981 to respond to those comments. The Staff hereby provides its responseg '
It II.
Statement of the Case Both the AamodtsM U
and UCS have moved the Licensing Board to reopen the record of the hearing on the non-cheating issues., While they both request, inter alia, the receipt into evidence of the HPI documents, they each seek considerably broader action as well.
UCS requests that additional documents, including the identical information for the HPI questions on written and oral exams for April 1981, now be served on the Board and all the parties and admitted into evidence (UCS Response at 3), and that the change in point value of the HPI question, and shift from Category F to Category E, from April to October be examined by the Board or Special Master (UCS Response, at 3).
The Aamodts ask that the record of the non-cheating proceeding be reopened "to enter and examine the responses of the candidates for licensing to the questions on the October licensing examination, including and specifically examining the responses to the HPI question."
Aamodt Motion, at 3.
Thus, the Aamodts would seek to examine any and all responses to the October exam, not just the HPI responses.
Presumably, by seeking to " examine" the responses,'the Aamodts contemplate the if "Aamodt Motion that the Hearing Be Reopened to Receive and Examine the Responses of Licensing Candidates to the HPI Question", dated December 21,1981 ("Aamodt Motion").
2f "UCS Response to Board Order on HPI Questions and Answers", dated December 24, 1981 ("UCS Response").
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' possibility of recalling witnesses as well, although this is not explicitly stated. The Aamodts further request that the record of the hearing on cheating and tti,e main hearing should be considered a single record.
Aamodt Metion, at 3-4.
III.
Discussion A. ' Reopening 1.
Legal Requirements for Reopening the Record The standards for recpening a record in Commission proceedings are defined in Kansas,C,as and Electric Compang (Wolf Creek Generating a
Station, Unit No. 1), ALAS-462, 7 NRC 320, 328 (1978). Therein, the Appeal Board makes it clear tnat the proponent of a motion to reopen bears a beavy burden. The movant must demonstrate that:
(1) the motion is timely, the motion is direct to a significant safety or environmental issue,p and (2) a different result would have been reached initially had the material submitted in support of the motion been considered.O (3)
See Pacific Gas and Electric Company (Diablo Canyon Nuclear Power
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Plant, Units 1 and 2), ALAB-598, 11 NRC B76, 879 (1980); Georgia Power (Alvin W. vogtle Nucler Power Plant, Units 1 and 2),
ALAB-291, 2 NRC 404, 409 (1975); Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAS-138, 6 AEC 520,523(1973).
y Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-227, 8 AEC 416, 418 (1974); Metropolitan Edison Company, et al.-(Three Mile Island Nuclear Station, Unit No. 2),
ALAB-486, 8 NRC 9, 21 (1978).
-4 Thus, the motion to reopen mus.t be timely and not based on information i
that reasonably could have been raised prior to the close of the record, it must involve a matter, hich is of some significance, and in addition it must be such that it would have led to "a different result... had the newly proffered material been considered initially."
2.
Application of the Legal Requirements to the Instant Motions (a) Timeliness Insofar as the motions relate to the HPI materials on the October 1981 NRC exams, the Staff does not challenge their timeliness. However, for the reasons discussed below, it does not believe that the HPI documents raise a "significant safety (or environmental) issue" which I
would have led to a "different result... had the newly proffered material been considered..itially", Diablo Canyon, ALAB-598, supra, n. 3,11 NRC at 879, and accordingly Intervencrs' motions must be denied on these bases.
However, the Staff objects to UC5' attempt to obtain at this time --
after not only the close of the record but two Partial Initial Decisions --
documents relating to the April 1981 oral and written examination questions on HPI (UCS Response, at 3).
These documents have been available for some time.
In spite of this, neither UCS nor any other Intervenor has requested them, either through formal discovery procedures or during the recent conference call on December 14, 1981 during which UCS requested other additional documents from the Staff, which request has been voluntarily complied with.
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A petition to reopen the record must show that the facts relied on by the petitioning party could not, with due diligence, have been known or discovered at an earlier stage in the proceeding.
Consumers Power Company (Midland Plant, Units 1 and 2), LBP-75-6,1 NRC 227, 23 (1975);
see Vermont Yankee Nuclear Power Corporation, supra, ALAB-138, 6 AEC at 526.
The fact that the April 1981 exam contained questions on HPI should not come as a surprise to UCS, who has presented no grounds for its delay in pursuing this line of discovery.
In view of the heavy burden placed upon a party who secks to reopen a closed record, UCS' unexcused delay must be deteminative.
(b) Significant InformationN Intervenors' motions raise matters which do not involve considerations of major significance to plant safety in the context of the record as it now stands.N y
As pointed out in Vemont Yankee, the significance of infomation and whether that infomation could affect the outcome of the proceeding are often intertwined considerations detemined by the same underlying facts.
ALAB-138, 6 AEC at 524.
In responding to the notions to reopen, however, we have addressed the " significance" criteria and the "effect on the outcome of the proceeding" criteria separately.
6/
Vermont Yankee, ALAB-138, 6 AEC at 523.
The Staff does not challenge the relevancy of the HPI documents to the "non-cheat,ing"'
proceeding.
See "NRC Staff's Comments Regarding the HPI Documents",
December 24,1981, at 5.
Rather, it is the Staff's position that the documents do not give rise to a significant safety issue in the context of the record as it now stands.
1.
Each of the two sets of October 1981 R0 written examinations (designated A and B) contain,ed the question: " List all the conditions to be satisfied prior to te}pinating or throttling HPI." As evidenced by the NRC's answer keys for the two sets of examinations, the NRC examiner expected answers based on Section 6.B.3.11.a of Emergency Procedure 1202-6B, which is a basic procedure establishing criteria for throttling HPI after it has been automatically initiated. Section 6.B.3.11.a of EP-1202-6B involves a follow-up action rather than an immediate operator response. Operators would have available to them the written emergency procedure for guidance.
Clark et al., fol. Tr. 6225, at 5, 6 (Clark); PID (Plant Design and Procedures and Separation Issues), December 14, 1981, Par. 744.
An analysis of the written examinations shows that all but one of the thirty-two examinees referenced both of the basic throttling criteria listed in Section 6.B.3.11.a of EP 1202-6B. Knowledge of the criteria, coupled with the availability of written emergency procedures, provir:es adequate assurance that the operators will be able to take proper corrective action during unforeseen accident sequences.
In light of the record as it stands, there is no significant safety issue raised by the l
documents.
The Aamodts' Motion contains a number of conclusory statements as to what the record in the cheating hearing shows, all of which are unsupported by references to the transcript, and which do not accurately character'ize the record. These statements do not appear to support their Motion to Reopen, but appear, rather, to be addressed to the relevance of
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the documents to the cheating ~ hearing. The Staff's position on the relavance of the HPI documents to the cheating hearing has already been stated.E to the extent their comments possibly can be Nevertheless;1 construed as an attempt to identify a "signficant safety issue", they merit a response.
For example, the Aamodts state that Mr. U testified that ha " discussed his examination freely" with individuals who were about to take the B examination, and that this constituted "information transferral" to those about to take the exam. Aamodt Motion, at. 2.
However, the record shows that Mr. U's conversation consisted of "mostly laughing and joking around" with the examinees before the April 1981 exam.
Tr. 26,879 (U). While he does not recall discussing the subject matter on the A exam with the B examinees, or discussing any specific questions, he speculated only that he "may have" done so.
Id.' In any event, Mr. U's testimony will be the subject of findings by the Board on the cheating issue. The Aamodts can point to no logical link between Mr. U's testimony concerning the April 1981 exam and the HPI documents for the October 1981 exam, which fonn the subject of these motions to reopen the record.
The Aamodts refer to a " statistical analysis" of the operators' responses to the HPI question (Aamodt Motion, at 1). However, the Aamodts have not presented a statistically valid analysis of these responses; they have simply totalled the number of failures on the HPI question for both the A exam and the B exam and, since the totals differ, S
7f See "NRC Staff's Comments Regarding the HPI Documents, dated December 24, 1981.
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i conclude that "thc logical exp,lanation is that a form of cheating affected the Octoter licensing examination." Aamodt Motion, at 2.
The Staff fails to follow thfy logic and submits that there are a variety of more logical explanations, none of which involve cheating.
Even if the Aamodts' " logical explanation" of cheating were valid, however, it is not relevant to the issue of reopening the non-cheating hearing record.
Similarly, from the fact that some operators received less than a 70% score on the HPI questions, the Aamodts conclude that the TMI Training Department " fail [ed] to have imparted necessary information concerning the HPI system" to the candidates. Apparently, the Aamodts fail to see that necessary information may indeed have been imparted to the operators, but that the operators could have misinterpreted the HPI question on the exam (as suggested by Licensee, " Licensee's Comments on HPI Questions and Answers in NRC October Examinations", dated December 24,1981 at 6), or that the operators could have simply failed to identify the criteria in the detail required by the NRC answer key (as also suggested by Licensee, at 5-6).
From this first erroneous conclusion, the Aamodts continue to another conclusion:
"Either the training program was inadequate, or the operators had attitudes which precluded learning."
(Aamodt Motion, at 2).
As any student who has ever failed a question on a test can attest, there are other possible explanations for failure, misreading of the question being among them.
These are but some of a series of unjustified conclusions in the Aamodt Motion. The remainder are similarly lacking in validity i
and will not be further addressed in this Response.
None of them shows
the presence of a significant, safety (or environmental) issue that has not been adequately addressed in the record as it now stands.
ll (c) Effect on the Outcome of the Proceeding UCS bases its motion to reopen upon its unexplained assertion that the HP1 documents are "significant and relevant" to UCS Contention No.
10 (UCS Response, at 2), and that the documents would change the Board's decision on that contention (UCS Response, at 7). That Contention reads as follows:
The design of the safety systems at TMI is such that the operator can prevent the completion of a safety function which is initiated automatically; to wit:
the operator can (and did) shut off the emergency core cooling system prematurely. This violates section 4.16 of IEEE 279 as incorporated in 10 CFR 50.55 (a) (h) which states:
The protection system shall be so designed that, once initiated, a protection system action shall go to completion.
The design must be modified so that no operator action can prevent the completion of a safety function once initiated.
In its PID, the Licensing Board found that the regulation cited in UCS Contention 10,10 CFR 50.55a(h), does not apply to THI-1 and that the facility is not in violation of 10 CFR 50.55a(h). (Par 726).
Tievertheless, "in view of the THI-2 experierme on safety system overriding", the Board accepted evidence on whether THI-1 conforms to IEEE Std. 279, even though the standard does not apply under NRC regulations. (Par 727).
It concluded that even if 10 CFR 50.55a(h) were to be applied to TMI-1, the THI-1 design meets the requirements of section 4.16 of IEEE std. 279-1968. (Par 731, 745).
Furthemore, nothing
in IEEE Std 279suggested by UCS persuaded the Board that it is necessary or appropriate to extend appl {c tion of the standard.
Finally, the Licensing Board found that "one lesson learned from the THI-2 accident is not to eliminate the operator's role by the increased use of automation, but to improve the operator's understanding and capabilit; to cope with the unusual and unexpected." (Par 745).
Contrary to UCS's assertions, the HPI documents could not conceivably change the Board's decision on UCS Contention 10, since they are irrelevant to that Contention and to the Board's findings on that Contention, as summarized above.
Quite simply, UCS Contention 10 deals with plant design and whether it should permit an operator to prevent the completion of a safety system once initiated. The HPI documents show that some operators failed a question on the NRC exam.
The fact that operators do not achieve a 100% score on NRC exams was certainly known to the Board at the time of its PID. While the Board noted the importance of operator training in correct plant operation (e.g., Par 744), a failure to receive a passing score on one portion of one category of an NRC exam cannot possibly override the principle, asserted by Staff and Licensee and adopted by the Board, that although procedures may be developed for all postulated design basis accidents, flexibility needs to be preserved so the operator can cope with the unforeseen. (Par 743).
While the Board's findings on UCS Contention 10 noted the need for training, the fact that 11 examinees out of 32 received less than 70% on a small portion of exam questions (the HPI questions) does not demonstrate that Licensee's training program has failed, or has failed to
the point that TMI-1 would operate more safely if operators were not permitted under any circumstances to prevent the completion of an automatically initiated safety function.
The Aamodts assert that the Board's conclusion on Aamodt Contention 2] is " clearly questioned" by the operators' responses on HPI. Aamodt l
8 Motion, at 3.
They also claim that the documents " bring into question" the Board's conclusions concerning training in general.
Id. Assuming, arguendo, that the HPI documents may be relevant to the Board's conclusions, the Aamodts' conclusory statements are no more than flat assertions which fail to show that a different result would have been reached initially had the HPI material been considered.
Failing such a demonstration by a party with a heavy burden of demonstrating all the criteria required for reopening, Wolf Creek, ALAB-467, supra, their motion must fail.
In conclusion, the outcome of the proceeding would not be affected by reopening the record to receive evidence with respect to matters raised in the Aamodt and UCS motions, even if Intervenors' motions to reopen were found to be timely and to raise matters of significance to l
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Aamodt Contention 2 includes, inter alia, a proposed requirement of 100". test performance for T!!I operators.
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plant safety. The matters raised by these motions were thoroughly addressed at the hearing. /,f 1
C.
Aamodts' Request that the Record of the' Hearing on Cheating and the Main Hearing Should be Considered As One The Aamodts ask that the record of the hearing on cheating and the main hearing should be considered as a single record (Aanudt Motion, at 3-4).
In fact, at an appropriate tire, the record will indeed be a single record.
In the meantime, however, the Board has established a rational, orderly procedure for receiving evidence limited to the cheating-related issues, by keeping the record on the reopened cheating portion separate from the closed record on which it has just based its December 14, 1981 PID. The Board specifically has made provision for addressing the impact of the evidence on the cheating-related issues on its August 27, 1981-PID concerning management issues when it defined the broad issue which would be the subject of the reopened hearing on cheating.E Finally, after findings on the cheating-related issues 9/
The Staff's proposed findings of fact outline the depth to which these matters were explored.
See "NRC Staff Proposed Findings of Fact and Conclusions of Law Regarding Plant Design and Modification Issues," (June 1,1981), starting at pp. 57-77.
The record in the reopened hearing on cheating will show that the issues raised again i
here by the Aamodts have been the subject of extensive testimony at that hearing. The parties will have the opportunity to present proposed findings of fact in that proceeding, and can address the significance of the HPI documents at that time.
10/ Memorandum and Order on October 2,1981 Conference of the Parties Relative to Peopened Proceeding, October 14,1981, at 2.
have been made by the Board, the record on management issues, as affected (if at all) by the Bokrd's findings on cheating-related issues, will be viewed as one forJthe purposes of appeal. To grant the Aamodts'
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request at this time would unduly complicate and confuse the issues.
The Board has established a workable procedure for the reopened hearing, and that procedure should be adhered to.
D.
Conclusion For the reasons discussed above, Intervenors UCS's and Aamodts' motions to reopen the record, and the Aamodts' request to have the record of hearings on cheating and non-cheating issues be treated as a single record, shou.ld be denied in all; respects.
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Respectfully s.ubmitted,
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D WW Mary Wagner 0 Couns for NRC Staff Dated at Bethesda, Maryland this 30tc day of December,1981 e
UNITID STATES OF Af1 ERICA NUCLEAj REGULATORY C0!!!11SSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD AND SPECIAL MASTER
/
In the Matter of r4dTROPOLITAfl EDIS0N COMPANY, ET AL.)
Docket No. 50-289
)
(Restart)
(Three Mile Island, Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO PARTIES' COMMENTS ON HPI DOCUMENTS" in the above captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, or, as indicated by double asterisks, by hand delivery, this 30th day of December, 1981:
- Dr. John H. Buck
- Dr. Linda W. Little Atomic Safety & Licensing Appeal Administrative Judge Board Panel 5000 Hermitage Drive U.S. Nuclear Regulatory Commission Raleigh, North Carolina 27612 Washington, DC 20555
- George F. Trowbridge, Esq.
- Christine N. Kohl Shaw, Pittman, Potts & Trowbridge Atomic Safety & Licensing Appeal 1800 M Street, N.W.
Board Panel Washington, DC 20006 U.S. Nuclear Regulatory Comission Washington, DC 20555 Robert Adler, Esq.
505 Executive House
- *Ican W. Smith P. O. Box 2357 Administrative Judge Harrisburg, Pennsylvania 17120 Atomic Safety & Licensing Baard Panel U.S. Nuclear Regulatory Commission Honorable Mark Cohen Washington, DC 20555 512 D-3 Main Capital Building Harrisburg, PA 17120
- Gary L. Milhollin, Esq.
Mr. Thomas Gerusky 1815 Jefferson Street Bureau of Rad'ation Protection Madison, WI 53711 Dept. of Envii inmental Resources P. O. Box 2063
- Dr. Walter H. Jordan Harrisburg, PA 17120 Administrative Judge Carib Terrace Motel 552 N. Orcon Blvd.
Pompono Beach, Florida 33062 t
- Judge Reginald L. Gotchy Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 20555 Mr. Harvin I. Lewis 6504 Bradford Terrace j
- Atomic Safety and Licensing Appeal Board Philadelphia, PA 19149 U.S. Nuclear Regulatory Commission Washington, DC 20555 Metropolitan Edison Comahny ATTN:
J. G. Herbein, Vice President
- Atomic Safety and Licensing Board Panel P. O. Box 542 U.S. Nuclear Regulatory Commission Reading, PA 19603 Washington, DC 20555 Ms. Jane Lee
- Secretary R.D. 3; Box 3521 U.S. ' Nuclear Regulatory Commission Etters, PA 17319 ATTN:
Chief, Docketing & Service Br.
Washington, DC 20555 Walter W. Cohen, Consumer Advocate Department of Justice William S. Jordan, III, Esq.
Strawberry Square,14th Floor Harmon & Weiss Harrisburg, PA 17127 1725 I Street, N.W.
Suite 506 Thomas J. Germine Washington, DC 20006 Deputy Attorney General Division of Law - Room 316 John Levin, Esq.
1100 Raymond Boulevard Pennsylvania Public Utilities Comm.
Newark, New Jersey 07102 Box 3265 Harrisburg, PA 17120 Allen R. Carter, Chairman Joint Legislative Committee on Energy Jo? dan D. Cunningham, Esq.
Post Office Box 142 Fox, Farr and Cunningham Suite 513 2320 Nortn 2nd Street Senate Gressette Building '
Harrisburg, PA 17110 Columbia, South Carolina 29202 Louise Bradford Robert y. Pollard Three Mile Island Alert 609 Montpelier Street 1011 Green Street Baltimore, liaryland 21218 Harrisburg, PA 17102 Chauncey Kepford
- Ms. Ellyn R. Weiss Judith Johnsrud Harmon & Weiss Environmental Coalition on Nuclear Power 1725 I Street, N.W.
433 Orlanao Avenue Suite 506 State College, PA 16801 Washington, DC 20006 Ms. Frieda Berryhill, Chairman
- Mr. Steven C. Sholly Coalition for Nuclear Power Plant Union of Concerned Scientists Postponement 1725 I Street, N.W.
2610 Grendon Drive Suite 601 Wilmington, Delaware 19808 Washington, DC 20006 i
Gail Phelps ANGRY 245 W. Philadelphia Street York, Pennsylvania 17401
.f Q h Jp'J,
- Judge Gary J. Edles, Chairman Atomic Safety and Licensing Appeal Board MaryElWagner V U.S. Nuclear Regulatory Commission Counsel for NRC Staff Washington, DC 20555
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