ML20040B978

Reply to Commonwealth of PA Proposed Findings of Fact & Conclusions of Law on Issues Raised in Reopened Hearing on Cheating

ML20040B978
Person / Time
Site:	Crane
Issue date:	01/22/1982
From:	Goldberg J, Wagner M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:
References
NUDOCS 8201270125
Download: ML20040B978 (13)

Text

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Staff 1/22/82 rs UNITED STATES OF AMERICA

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

. D g g 1982&

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In the Matter of

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y METROPOLITAN EDIS0N COMPANY, ET AL. )

Docket No. 50-289

)

(Restart)

(Three Mile Island Nuclear Station. )

Unit No.1)

)

NRC STAFF'S REPLY TO COMMONWEALTH OF PENNSYLVANIA'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON ISSUES RAISED IN REOPENED HEARING ON OPERATOR CHEATING I.

INTRODUCTION 1.

In the "Comonwealth of Pennsylvania's Proposed Findings of Fact and Conclusions of Law on Issues Raised in Reopened Hearing on Operator Cheating" (" Commonwealth Findings"), the Commonwealth has submitted pro-posed findings on three of the eleven issues litigated in the reopened proceeding.

These issues are: Issue 1 (the extent of cheating by oper-ators at TMI-1); Issue 2 (the adequacy of the NRC Staff's investigation of cheating); and Issue 3 (the adequacy of Licensee's investigation of and response to cheating).

In this Reply, the Staff will address the major categories of findings proposed by the Coninonwealth. The Staff has not prepared a reply to every statement of the Commonwealth with which it disagrees, or every piece of evidence about which it draws

$O7 different conclusions. The Staff's determination not to reply to each

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{DRADOCK 05000289 PDR

- and every finding proposed by the Conunonwealth should not be taken to imply that the Staff agrees with or adopts those Commonwealth findings to which the Staff has not replied.

II.

EXTENT OF CHEATING 2.

The Commonwealth, in its proposed findings, would have the Board declare that there is " strong evidence that the following indivi-duals participated in some form of cheating on either NRC or Licensee-administered exams or quizzes": DD [Mr. Husted], FF [Mr. Shipman] and another individual, U, GG, G and H.

Commonwealth Findings, 1 4. The Board rejects this finding, and the proposed justifications for such a finding, for the reasons outlined below.

3.

At the outset, the Board notes that the Commonwealth proposes a finding that "[e]vidence of extreme lack of integrity on quizzes is only marginally less relevant than evidence of lack of integrity on major exams."

(Commonwealth Findings, 1 5.) This proposed finding, which appears without citation to the record, is contradicted by the sworn testimony of several operators who drew a sharp distinction between the significance of cooperation on weekly quizzes and cheating on major examinations.

See, e.g., Tr. 25,974 (the difference in importance was

" phenomenal") (00); Tr. 26,305-7 (V). These operators also testified that there was a lack of clarity as to the guidelines for taking such quizzes, and the purpose of the quizzes.

See, e.g., Tr. 25,972-3 (00);

Tr. 26,305-7 (V).

. A.

Mr. Husted 4.

The Commonwealth points to three areas in which it would have the Board " question" Mr. Husted's integrity: (1) the alleged solicitation by fir. Husted of information from Mr. P during the April 1981 NRC examina-tion; (2) Mr. Husted's " apparent" withholding of information relevant to potential cheating on the April 1981 NRC examination; and (3) fir. Husted's potential knowledge of or involvement in Mr. U's use of Mr. Husted's office allegedly "to facilitate cheating" on the April 1981 NRC examina-tion. Commonwealth Findings, 1 6.

The Board will discuss briefly each of these areas.

1.

Alleged Solicitation by Mr. Husted of Mr. P 5.

The allegations involving Messrs. P and Husted are disposed of in the Staff Findings at il 46-52.

The Board finds them well-reasoned and an accurate and balanced explication of the record, and adopts those findings.M 1/

Comonwealth Findings,113 merits further comment by the Board, although not in relation to the alleged Husted-P incident.

According to the Commonwealth, Mr. 00 was extremely careful not to make any accusations without adequate suppcrt. To the contrary, the Board finds that Mr. 00 implied at least one serious allegation without adequate support when he stated that he ran into Mr. U at the coffee machine, heard Mr. U say "hi, how are you doing",

and, because 00 had heard a rumor about someone being posted in Husted's office, assumed that Mr. U had come from Mr. Husted's office and was giving Mr. 00 the opportunity to ask him a question about the examination. Tr. 25,988 (00). Mr. 00 admitted that he couldn't really say that Mr. U came from Mr. Husted's Office, Id_.,

and later admitted that he simply " jumped to the conclusion" that Mr. U was offering help on the examination. Tr. 25,988 (00).

_4_

2.

" Apparent Withholding of Information" Relevant to Potential Cheating 6.

The Commonwealth proposes a finding that Mr. Husted apparently withheld information from NRC investigators. The Board cannot so find.

7.

The evidence shows, inter alia, that when Mr. Husted was interviewed by the NRC Staff on July 29, 1981, he indicated that he had heard " unconfirmed hearsay" to the effect that there was cheating on the April 1981 NRC exam. Staff Ex. 26 at 39. However, according to 0IE's report of the interview, he " refused" to reveal any specifics of the rumors, and upon further questioning said he could not recall anything concerning what he had heard. Jd.

In a later interview, Mr. Husted stated that he remembered someone saying he saw someone (unnamed)

" passing papers" in an examination.

Staff Ex. 27, at 16.

8.

Mr. Husted testified that his " refusal" to reveal specifics was the interviewer's interpretation of his (Mr. Husted) saying he didn't have anything to say, and that he did not provide any information because he didn't have any. Tr. 26,929 (Husted).

By the time of his second inter-view, on September 18, 1981, Mr. Husted said he determined that it was l

possible that the two words he heard, " passing papers", could have been referring to passing papers during the April 1981 NRC examination, and he indicated that to 0IE.

Tr. 26,930 (Husted). On the basis of the evidence in the record, the Board finds that Mr. Husted did not withhold information relevant to potential cheating and did not act improperly in responding to the questions of NRC Staff investigators.

I

. 3.

Mr. U's Use of Mr. Husted's Office 9.

The Commonwealth states that Mr. Husted may have known of -- or been involved in -- Mr. U's use of Mr. Husted's office "to facilitate cheating" on the April 1981 NRC examination.

Commonwealth Findings, at 11 24, 33-34. The sole supporting evidence cited by the Commonwealth is the fact that Mr. Husted agreed to let Mr. U use his office during the third and fourth days of the NRC examination.

Commonwealth Findings, at 1 34.2.

Mr. U told Mr. Husted that he wanted to study in Mr. Husted's office. Tr. 26,916-7 (Husted); Tr. 26,855 (U). The Board finds that this fact in no way supports even an insinuation of wrongdoing by Mr. Husted.

This is so even if we are to assume, arguendo, that Mr. U was indeed posted to aid examinees, a conclusion which we find unsupported by the voluminous record in this proceeding.

See Staff Findings, at 11 37-45.

B.

Mr. Shipman

10. The issues raised by Commonwealth Findings 11 25-30 on the incident involving Mr. Shipman, and the Staff's investigation of that incident, are fully and correctly resolved in Staff Findings 11 53-54, 91-96, and 98-100. The Board finds them well-reasoned and an accurate and balanced explication of the record, and adopts those findings.

11. Only one peripheral matter raised by the Commonwealth in connection with this subject merits clarification here because of its bearing on the evidence involving Mr. U.

In support of the position that the person who questioned Mr. Shipman at the coffee stand was also l

sitting for the NRC examination at the time, the Commonwealth cites Mr. Shipman's testimony to the effect that the only people in the area of the training complex at the time were those individuals who were I

- taking the exam.

(CommonwealthFindings,129). While Mr. Shipman may be testifying to the best of his recollection, his statement is contrary to the weight of the evidence. See, e.g.. Tr. 26,600, Tr. 26,618

("there must have been 40 people" in the vicinity of Mr. Husted's office during the examinations) (T); Tr. 26,825, 26,826-7 (as many as 50 people came through Mr. Husted's office) (U). This matter is of possible signifi-cance to the question of whether Mr. U had a legitimate purpose in being in the area of the training facility on the third and fourth days of the April 1981 NRC examination. The Board finds that there were several individuals, other than those sitting at the time for the NRC examina-tions, who were in the training facility during the four days in April 1981 when the NRC examination was administered.

C.

Mr. U 12.

In its proposed findings concerning Mr. U, the Commonwealth dwells on the large numbers of rumors linking Mr. U's name to various alleged incidents of cheating.

Commonwealth Findings, 11 31-42.

The rumor about someone stationed outside the exam room to help examinees is dealt with in the Staff Findings at 11 37-45.

The allegation that Mr. U called Mr. KK for the purpose of helping Mr. O on his examination is discussed in the Staff Findings at 11 28-35. As pointed out in those findings, no one, not even Mr. KK (who received the telephone call),

could identify the caller as Mr. U.

The Board finds the Staff Findings on this issue well-reasoned and an accurate and balanced explication of the record, and adopts those findings.

Furthermore, the Board is compelled to find that the rumors and allegations discussed in the Commonwealth Findings are unsupported.

~-

. 13. The Commonwealth has drawn a series of unfounded conclusiens from the evidence.

As an example, as to Mr. U, Commonwealth Finding 134.4 states that it " stretches... credibility" to believe that, follow-ing an NRC examination, an operator would immediately begin studying for another examination scheduled for some six months later.

Indeed, the Commonwealth points to the fact that Mr. U had just completed the exami-nation as a " salient point... of circumstantial evidence" pointing to Mr. V's guilt.

(Commonwealth Findings, 1 34).

These statements totally discount the fact that Mr. U was assigned to training during those two days and he was expected to be studying on his own. Staff Ex. 27, at

37. The Board is not willing to disregard this fact. While we can well understand that someone who has just completed a two-day exanination would probably rather do something other than study, we are not prepared to speculate that an employee who is assigned to study under such circum-stances would, instead, be more likely to assist others in cheating on that exanination.

The Board finds the remaining points of " circumstantial evidence" cited by the Commonwealth to be equally unpersuasive.

14.

The Commonwealth would also have the Board find that "a number of witnesses testified that Mr. U himself cheated on the April,1981 NRC exam as well as prior exams." Commonwealth Findings, 1 39.

In fact, no one -- neither the witnesses cited by the Comonwealth in support of this statement, nor any other of the numerous witnesses who testified at the lengthy hearing -- so testified.

Mr. Arnold, relied upon by the Commonwealth in support of its proposed finding, said only (at the page cited by the Comonwealth, and elsewher ?) that there were " rumors" that i

4

. Mr. U had cheated. Tr. 23,679-80 (Arnold).

Similarly, all Messrs. O, V, and Wilson said they heard were rumors.U

15. The Board also does not agree with the Commonwealth's character!zation of Mr. U's " cooperation" with other operators on weekly training quizzes as cheating. Of ten times, " cooperation" involved no more than clarification of the question being asked. Tr. 26,701-2(P);

Tr. 26,305-6 (V). There is ample testimony in the record, not just by Mr. U but others as well, that this practice was understood to be acceptable behavior.

See, e.g., Tr. 26,305-7 (V). This was so both because the quizzes were viewed as part of the learning process, and the operators were striving for a " crew concept." Tr. 26,305-6 (V); Tr. 26,807 (U).

D.

GG

16. The allegations involving Mr. GG are fully and correctly resolved by Staff Findings 11 62-65 and 11 71-73. The Board finds them well-reasoned and an accurate and balanced explication of the record, and adopts those findings.

E.

G and H

17. The parallelisms between answers by Messrs. G and H on a series l

of quizzes are addressed in the Staff Findings at 11 62-70. The Board finds them well-reasoned and an accurate and balanced explication of the record, and adopts those findings.

2_/

This is simply one of many instances in which parties have placed great reliance on unsubstantiated rumors in this proceeding.

Rumors may be useful as possible investigating leads.

If a rumor l

is not borne out by the evidence that is developed, it is of no l

further value.

Unsubstantiated rumors should be given no weight i

as evidence of cheating in this proceeding.

(

l

, 18. The Commonwealth goes into some detail in discussing evidence supportive of its position that there are reasons to dout,t Messrs. G and H's denials of cheating.

Only a few of the evidentiary points are noted here, chiefly to clarify the record.

19. The Commonwealth would have the Board find " strong contradictions" in testimony between Messrs. G and H with respect to specific parallelisms.

Commonwealth Findings, 154.4.

Taken as a whole, however, the Board finds the " contradictions" are at most no more than natural discrepancies that could reasonably be expected to appear in two individuals' recollection of an event, or increasingly more specific recollection under lengthy questioning.

As an example, the Commonwealth would have the Board find Mr. G's testimony on the parallel answers to the examination question on Bernoulli's equation " highly incredible" and a " change [in] his story."

Commonwealth findings,154(a).

The Board, upon reviewing Mr. G's testimony, finds that his testimony on that answer goes from the general (e.g., he memorized the answer) (Tr. 25,738-9 (G)) to the specific (that he and Mr. H found a better definition of Bernoulli's equation than the definition supplied by the training department) (Tr. 25,813-15 (G)).

His j

behavior in testifying before the Special Master is thus consistent with his statement that, when answering (examination) questions, he does not always complete his answers and he does not elaborate. Tr. 25,786-7 (G). Thus, Mr. G's evolving answer on Bernoulli's equation.is likely attributable to persistent questioning on that subject.

20. The fact that Mr. H identified the training instructor as the source of the definition he memorized (Tr. 25,883-6; Tr. 25,919; Tr. 25,944-5 (H)) only highlights the fact that different witnesses to

- the same event may have different recollections of that event. Moreover, the Board finds that the different recollections by Messrs. G and H are actually supportive of its finding that the two operators did not collaborate.

Indeed, it appears that operators who collaborated on examinations or quizzes might well collaborate on explanations to the Board of their parallel answers.

21.

In conclusion, with the exception of Mr. Shipman, who has volunteered the fact of his involvement in an incident of cheating, the Board cannot find that any of the individuals listed above participated in cheating. The Board finds that Licensee's action regarding Mr. Shipman was proper, and no further action is necessary. See Staff Findings, 1 120.

III. THE ADEQUACY OF THE NRC STAFF'S INVESTIGATION OF CHEATING BY TMI-1 OPERATOR LICENSE CANDIDATES

22. While the Commonwealth faults several aspects of the Staff's investigation, the Board finds that investigation to be fully adequate.

The matters raised in Comonwealth Findings 11 56-66 are addressed in 11 78-102 of the NRC Staff Findings. The Board finds them well-reasoned and an accurate and balanced explication of the record and adopts those findings.

23. Only one point raised by the Commonwealth need be addressed further. The Commonwealth faults the Staff for failure to interview every conceivable source of information on the Shipman incident and on the allegations against Mr. U (Commonwealth Findings, 11 62, 64). To the contrary, the Board finds that OIE was persistent in its interviews and followed all logical leads to their conclusion.

See Staff Findings, 1 93.

Based on the testimony of Mr. Ward concerning the priorities of

11 the DIE investigation (see Staff Findings, 1 95), we find OIE's decision not to interview every single individual who might have knowledge of each incident to be appropriate.

IV. ADEQUACY OF LICENSEE'S INVESTIGATION OF CHEATING 24.

The Com.nonwealth proposes that the Board find that "both the Licensee and the Staff appear to believe that a denial of cheating by the accused constitutes proof of innocence."

(Commonwealth Findings, 171). However, based generally on the testimony of Staff witnesses Ward, Baci and Gilbert, and Licensee witnesses Arnold, Hukill, and J. Wilson, it does not appear that either the Staff or Licensee con-siders a denial of cheating by the accused to constitute conclusive proof of innocence. The Board further notes that it is appropriate to consider a denial of cheating as evidence, to be weighed and considered along with the other evidence, in determining an individual's involvement in cheating.

V.

CONCLUSIONS OF LAW 25.

The Commonwealth would have the Board conclude that there is no reasonable assurance at this time that THI-1 can be operated safely by Messrs. Husted, U, GG, G, and H.

(Commonwealth Findings, Conclusions of Law). The Board is unable to make such a finding, and, to the contrary, finds that the record as a whole demonstrates a reasonable assurance that, subject to the conditions imposed by the Board in its August 27, 1981 and December 14, 1981 PIDs, TMI-1 can be operated safely.

26. On the basis of what the Commonwealth characterizes as " strong evidence" of cheating -- evidence from which we draw different inferences and conclusions than does the Comonwealth -- the Board is

~

- 12 asked to direct the Staff to suspend the licenses of the above-listed individuals. The Board is not inclined to make such a finding, nor does it have the authority to do so.

It is settled that a licensing board does not fiave the authority to direct the Staff in performance of the Staff's administrative functions.E Carolina Power and Light Co.

(Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), CLI-80-12, 11 NRC 514, 516-17 (1980).

27. We could, however, recommend to the Commission the withholding of operator licenses for those individuals, for the Commission possesses tne authority to direct the Staff in this regard.

Id.

However, the record in this case does not warrant such action. To deprive those individuals of their licenses -- and thus perhaps their livelihood -- on the basis of nothing more than circumstantial evidence, rumor, innuendo and unresolved conflicts in testimony would be manifestly unjust.

Furthermore, the Board finds that there is a complete, extensive record in this proceeding, including intense and prolonged crcss-examination under oath of Messrs. Husted. Shipman, U, GG, G H and many others. The Board does not believe that further investigation of those issues would result in any more certainty.

28. The Board is unable to conclude that any of the individuals who are the subject of the Commonwealth's proposal (i.e. Messrs. Husted, U, GG, G and H) participated in any cheating.

y Responsibility for the NRC cperator licensing under 10 CFR Part 55 (Operators' Licenses) has been delegated to the Staff.

NRC Manual Chapter NRC-0123. " Organization and Functions, Office of Nuclear Reactor Regulation," Section 0123-03, 0123-06 (Part II, H.2)

(July 13,1981).

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- 13 The Board notes that even the Commonwealth does not propose that the 7

Board so conclude.

Rather, the Commonwealth proposes, for instance, only that the evider.ce " appears to indicate" cheating by Mr. DD (Commonwealth Findings, 1 14 (emphasis added); that the Board has

" substantial doubts" about Mr. U's guilt (Commonwealth Findingt,134),

and that Mr. G (or Messrs. G and H) "probably cheated (Commonwealth Findings, 1 54(a), p. 34). Even if the Board were to adopt such con-clusions -- which it does not -- the Board finds that such conclusions do not have the requisite degree of certainty for the Board to recommend the withholding of licenses.

Re pectfully submitted, bk Mary E Wagner j/

Counse for NRC 5taff Q4 ack R. Goldberg Counsel for NRC Staf '

Dated at Bethesda, Maryland this 22nd day of January,1982 i

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