ML20040C111

Reply to Parties' Proposed Findings in Reopened Restart Proceeding.Certificate of Svc Encl

ML20040C111
Person / Time
Site:	Three Mile Island
Issue date:	01/22/1982
From:	Blake E METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:
References
ISSUANCES-SP, NUDOCS 8201270278
Download: ML20040C111 (75)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION RECEtygg Nn N2 61982u 5 2 hxY 5 N Before the Atomic Safety and Licensing Board s '/

In the Matter of )

) Do c ke t No . 50-289 SP METROPOLITAN EDISON COMPANY )

) (Restart)

(Three Mile Island Nuclear )

Station , Unit No. 1) ) (Reopened Proceeding)

LICENSEE'S REPLY TO PINDINGS PROPOSED BY OTHER PARTIES IN REOPENED TMI-l RESTART PROCEEDING l

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v 9 TABLE OF CONTBNTS I. GENERAL................................................ 2 II. LICENSEE ' S REPLY TO NRC STAFF FINDINGS . . . . . . . . . . . . . . . . . 6 III. LIC ENSEE ' S REPLY TO TMIA FINDINGS . . . . . . . . . . . . . . . . . . . . . . 6 A. Introduction....................................... 6 B. Licensee's Approach Before the O and W Affair................................. 7 C. Licensee's Reaction to the 0 and W Affair.................................... 13 D. NRC Staff Investigation........................... 22 E. Implications for Potential Restart........................................... 23 F. Factual Summary and Conclusions....................................... 25 IV. LICENSEE'S REPLY TO COMMONWEALTH OF PENNSYLVANIA FINDINGS.............................. 2'7 A. In t r od uc t io n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7 B. Extent of Cheating by TMI-l Operator License Candidates....................... 28

1. Mr. Husted................................... 28

, a. Alleged Solicitation of l

Mr. P by Mr. Husted..................... 28

b. Mr. Husted's Alleged Withholding of Information.......................... 32

c. Mr. Husted's Potential Knowledge of or Involvement in Mr. U's Alleged Use of Mr. Husted's Office to Facilitate Cheating.................. 34

2. Mr. U........................................ 35 i

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a. Mr. U Allegedly Stationed Outside the Exam Room to Provide Answers. . . . . . . . 35

b. Telephone Call to Mr . KK. . . . . . . . . . . . . . . . 38

c. Rumors About Mr. U and Crib sheets.................................. 39 1

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d. Mr. U's Cheating on Weekly Quizzes................................. 39

3. Mr. GG....................................... 40

4. Messrs. G and H.............................. 41 C. Adequacy of NRC Staff's Investigation of Cheating....................................... 46 D. Adequacy of Licensee's Investigation of Cheating....................................... 49 E. Conclusions of Law................................ 51 V. LICENSEE ' S RESPONSE TO AAMODT FINDINGS. . . . . . . . . . . . . . . . 52 A. Introduction...................................... 52 B. Procedural Matters................................ 52 C. Substantive Findings.............................. 61

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LNC 1/22/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of ) Docket No. 50-289 SP

)

METROPOLITAN EDISON COMPANY ) (Restart)

)

(Three Mile Island Nuclear ) (Reopened Proceeding)

Station, Unit No. 1) )

LICENSEE'S REPLY TO FINDINGS PROPOSED BY OTHER PARTIES IN REOPENED TMI-l RESTART PROCEEDING

1. Licensee herein submita its reply to findings proposed by other parties to the reopened hearing on cheating. Licensee has not attempted to respond here to each finding or conclusion proposed by another party with which Licensee disagrees or to note in every instance where there exists even substantial disagreement. Nor is the Board required to expressly treat in its decision every finding proposed by any party. Where, for ex ample , the disagreements are plain and positions are accom-panied by accurate citations to the record, we have not repeated our position, but rely upon Licensee's findings of January 5, 1982. Additionally, in the time available Licensee has not attempted to check all citations; however, as our Reply reflects, in some instances where citations have been checked, they have been four.d to be inaccurate and improper.

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2. Licensee's Reply is set forth hereaf ter in the form of recommended findings for the Board to adopt concerning the proposed findings of the parties. Proposed findings of the parties are cited as LIC, Staff, TM IA , PA, or Aamodt PF (paragraph number).

I. GENERAL

3. On December 8, 1982, prior to the completion of the evidentiary hearings, the parties agreed upon a schedule for the submission of proposed findings to the Special Master. Tr.

26,549-52. Judge Milhollin accepted the schedule and, as well, approved the parties' proposal that the findings submitted to him take the form of a proposed Board decision. Tr. 26,632-33.

Under the schedule, Licensee was to file its findings on January 5, 1982, and the other parties on January 15, 1982; Licensee and the Staff were afforded an opportunity to file reply findings by January 22, 1982. Licensee, TMIA, the Commonwealth and the Staff all filed findings in accordance with the agreed upon schedule.1 The Aamodts, however, the week 1 See Licensee's Proposed Findings of Fact and Conclusiorm of Law on Issues Raised in Reopened TMI-l Restart Proceeding (Submitted to the Special Master in the Form of a Recommended Initial Decision by the Atomic Safety and Licensing Board),

dated January 5, 1982; TMIA's Proposed Findings of Fact and Conclusions of Law on Issues Raised in Reopened TMI-l Restart Proceeding, dated January 15, 1982; Commonwealth of Pennsylvania's Proposed Findings of Fact and Conclusions of Law on Issues Raised in Reopened Hearing on Operator Cheating, undated; and NRC Staff's Proposed Findings of Fact and Conclusions of Law on Issues Raised in the Reopened Restart Proceeding, dated January 15, 1982.

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the findings were due, sought an extension from January 15 to January 18, 1982. Both Licensee and the Staff agreed to the Aamodts' request, provided the Aamodts hand-delivered their findings to the offices of Licensee's counsel by noon on January 18th, to avoid other than minimal impact on the reply findings schedule. Judge Smith, acting in the Special Master 's absence, approved the Aamodt extension, granting the Licensee and Staff until January 26th to reply to the Aamodts' findings.

On January 18, in a conference call, the Aamodts asserted that due to travel conditions, they were unable to deliver their findings as previously agreed. Licensee offered and had a messenger pick up the findings from the Aamodts later that day.2 In the same call, the Aamodts sought a further extension of time to prepare more findings; Judge Smith denied their request. On January 22, 1982, Licensee filed its Reply to the other parties' findings. The same date, the Staff, too, filed a reply to parties other than the Aamodts, to whom they replied on January 26th.

4. In their findings, Licensee and the NRC addressed all the issues in the reopened proceeding. The Commonwealth in its findings dealt only with Issues 1 (extent of cheating), 2 (adequacy of NRC investigati.on) and, 3 (adequacy of Licensee investigation); TMIA 's findings were somewhat limited, but 2 Aamodt Proposed Findings of Fact and Conclusions of Law on Issues Raised In Reopened TMI-l Restart Proceeding, dated January 18, 1982.

1 broader than the Commonwealth's; the Aamodt findings addressed procedural matters and substantively, Issues 1 (extent of cheating), 3 (adequacy of Licensee's investigation) and 5 (Licensee's management involvement).

5. We are struck by several themes which run generally through the find ing s . First, although the restart proceeding and this reopened phase, as well, concern Licensee's manage-ment, the findings of the intervening parties and the Commonwealth focus on individual employees of Licensee; tne Commonwealth's findings, in particular , suggest that the ind ivid ual licenses of some operators be suspended pending further investigation, but are totally silent on management.

6. Next, although there exist among the parties' findings considerable differences in opinion of what the evidence demonstrates, it is noteworthy that with the exception of TMIA's pointing out one obvious typographical error (TMIA PF

84) and quarrelling with Licensee's finding in two other narrow respects (TMIA PF 86 and 112 ) , and the Aamodts attacking Licensee's findings concerning one instance of possible attempted cheating by an operator ( Aamodt PF 53), none of the parties took issue expressly with Licensee's findings even though Licensee's findings were submitted to them ten days earlier.

7. Additionally, we note that no party faults Licensee's or the Staf f's current procedures ft the administration of exams and further, that no party raises even a single 1

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allegation of wrongdoing by any individual on those examinations which provide the licensing basis for operator qualifications for restart. Thus, there is no evidence of problems nor does any party point to any evidence of wrongdoing l by any individual on the Kelly Category-T cxam, the November, l 1981 Licensee Category-T exams, nor the NRC's reexaminations of l all TMI-1 operators in October , 1981. The problems associated with Licensee's and the Staff's administration of quizzes and examinations and the cliegations of wrongdoing by individuals l on exams or quizzes all concern past practices and exams which no longer provide the licensed basis for operator quali-fications. While this is not dispositive of the issues before us, it is an important ingredient in the Board 's determinations in this case.

8. Lastly, we observe the ease with which some parties in this case would have us ignore denials under oath of alleged individual wrongdoing. We are pointed instead to rumors of wrongdoing, the sources of which do not appear, or numerous l rumors which together somehow add to the weight of each rumor, or widespread rumors whiah therefore constitute more probative i evidence. This is the crux of many of the differences in the i

j parties' views of the record evidence. In this proceeding, hearsay and tangentially relevant and material evidence has been admitted and considered to assure a full record. But there should be no doubt that it falls to the Board to weigh the evidence, and we have done so, bearing in mind the issues d

at hand and tha t it is Licensee's management which is our prime interest.

II. LICENSEE'S REPLY TO NRC STAFF FINDINGS

9. Licensee did not reply to the Staff's findings which were in substantial ag reement (and in some cases explicitly note it) with Licensee's own findings of January 5, 1982.

III. LICENSEE 'S REPLY TO TMIA FINDINGS A. Introduction

10. TMIA provided in its findings an abbreviated back-ground section on the reopened hearing. TMIA PF 1-11. We find Licensee's background section (LIC PF 1-22) to be a more detailed and accurate description and have adopted it. In so doing , we note that TMIA has not taken issue with Licensee's findings in this area and the Staf f has adopted them wholesale, except fo'r one paragraph which we have taken into account.

(Staff PF 5).

11. In Section III of its findings (TMIA PF 19-60), TMIA provides its description of " Licensee Approach to Cheating and Rumors of Cheating Before the O and W Aff air." TMIA properly observes that the most impor tant issues here are those that relate to management (TMIA PF 19), yet TMIA provides not one single cite to the testimony of Mr. Arnold , Mr . Hukill and Mr .

l Ross, all of whom testified that their first awareness of l

cheating at TMI-l came with NRC 's disclosure to Licensee on July 27, 1981, of the O and W exam similarities. See LIC PF 210 and 212. TMIA introduces this section by reference to the subject of "information flow" (TMIA PF 20), a subject not at issue in the reopened hearing. Moreover, their only reference in this discussion is to a report which is not in evidence (see l Management PID 1 469) and which is described as a full U.S.

! House of Representatives Committee report, rather than, as we have previously noted, a report by the majority staff of one House committee.

12. TMIA would have us adopt as a definition of manage-ment the technical breakpoint between management and labor under the bargaining unit arrangements at TMI. TMIA PF 21; see also LIC PF 209. We believe that for our purposes in assessing this Licensee's management competence, the Staff's view (LIC PF 209) that Mr . Ross , the Supervisor of Operations, and above, constitute management, is more sensible. This squares with our assessment of management competence throughout this proceeding.

l See Management PID tg 129 to 162. Similarly, with respect to training, we regard Mr. Newton or possibly Mr . Brown , who have l

l supervisory functions (see Newton and Brown, ff. Tr. 24,640, at

1) as the break point for management purposes, and reject TMIA 's proposal (TMIA PF 22) that all training personnel, including individual instructors, constitute management.

l B. Licensee's Approach Before the o and W Aff air

13. TMIA 's factual setting of the 1979 incident involving

! O and VV tracks that of Licensee. Compare TMIA PF 23-50 with LIC PF 298-306. TMIA, however, makes several suppositions which depart from Licensee's findings and, in our view, extend beyond the evidence. For example, TMIA attempts to implicate Mr. O more deeply in the incident by suggesting that Mr. O actually turned in the VV exam for Mr. VV (and thus by implica-tion that Mr. O knew the information he provided to Mr. VV was fo r VV 's ex am ) , and that before doing so, filled in Mr. VV's name on the exam. TMIA PF 23 and 24. The evidence does not suppor t TMIA 's views . To the contrary, Mr . VV testified that he submitted the exam papers, and Mr. O was never asked about this possibility by TMIA or anyone else. Tr. 26,662 (Mr. VV),

cited at TMIA PF 32. No handwriting expert opinion evidence was provided by any party, and TMIA's characterization of VV's statement, "I believe that to be my printing," as equivocal, is unfounded. bee Tr. 26,659, 26,660 (Mr. VV), cited at TMIA FF 34.

14. TMIA strenuously faults Licensee in the 1979 O-VV incident for not having apprised NRC of the circumstances at i

the time it certified VV. TMIA PF 41. Licensee, in its own findings, would have us " endorse Mr. Crocker's (NRC 's] view that Licensee should have advised NRC of the O-VV incident."

LIC PF 319. We do. But we do not subscribe to TMIA's charac-terization of the incident as " false pretenses" (TMIA PF 41).

As Mr. Miller viewed the circumstances, VV was not attempting to cheat. LIC PF 318. Had Mr. Miller judged it to be cheating, he would not have certified VV at all. Id. While we l

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may disagree with Mr. Miller's judgment, as TMIA obviously does, we do not take the next step and ascribe any particular motiv6 tion to it. As TMIA alludes (TMIA PF 41) and the record demonstrates vividly, Mr. VV was more than qualified techni-cally and his grades on exams were merely a function of time spent and motivation, not knowledge. Tr. 24,426 (Miller).

15. Several other statements by TMIA related to the 1979 incident deserve comment. The first is TMIA's assertion that, "It is not at all clear that any discipline was imposed cn

[VV]." TMIA PF 44. The next is their characterization, as

" completely incredible," of Mr. Arnold's consideration of the impact any action taken against VV could have on the rest of the organization's willingness to make comments which might be embarrassing to the company. TMIA PF 49. And finally, we note their quote, out of context, that Mr. Arnold may well not have mentioned the O-VV inc! dent to the NRC, had O not been involved in it. TMIA PF 50. As Licensee in its findings points out, Mr. VV was relieved of his position as Supervisor of Operations t

( and presently is in a non-supervisory technical interface 1

l position. LIC PF 313. This strikes us as very real disciplin-ary action. Mr. Arnold's admission of the unique reasons why management was hesitant to make an example of VV reflects 3 We note here that this would not necessarily be the end of the matter if, for example, Mr. Arnold with his current position, or Mr. Hukill, or others who presently are involved in the certi-fication of operators, had participated in the certification of I VV in 1979.

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candor on management's part. Tr. 23,732-34 (Arnold). It also is indicative of the varying circumstances management faces in each instance of disciplining its employees. See Tr. 23,758 (Arnold). Again, Mr. Arnold's integrity is enhanced rather than diminished by his statements cited by TMIA regarding his disclosure to NRC of the O-VV incident. He stated he first recalled the potential relevancy of the incident to the NRC's investigation the night of July 27, 1981, while reflecting on the 0 and W incident. Tr. 23,702 (Arnold). He further stated that he anticipated this information would be of interest to the NRC. Tr. 23,870 (Arnold). There is no basis upon which to conclude that if Mr. O had not been involved in the investiga-

' tion of the April 1981 NRC examinations, ifr. Arnold would have recalled the July 1979 incident at all. For Mr. Arnold to admit this is fo r thcoming .

16. TMIA 's brief reference (TMIA PF 51-54) to the Polon rumors distorts the record. The failing on the part of Mr.

Polon promptly to report the rumors he heard from Mr. U in June, 1981, was viewed by Mr. Arnold as inappropriate and Mr.

Polon was chastised immediately. Commonwealth Ex. 8. Further, j Mr. Polon just didn't " happen to be talking to Mr. Gifford" and

" happen to mention the statements made by his wife." TMIA PF l 53. He was engaged in conversation with Mr. Gifford regarding i

the cheating incident of 0 and W generally, and at that time related the rumors he had heard from his wife and Mr. U.

Commonwealth Ex . 8. Mr. Gifford went promptly to Mr. Arnold, who immediately reported the rumors to NRC. Id.

17. No party, including Licensee, disputes that looseness and lack of sufficiently clear and understood guidelines existed in years past during weekly quizzes of the operators.

LIC PF 333. The testimony is mixed with respect to the extent of the problems and degree of imnrovement in recent years, for example, during the OARP. Compare, e.g., Tr. 25,968-69 (00)

(widespread, even though remembered only one instance in which he had cooperated) with Tr. 25,685, 25,698 (Mr. GG) (no cheating occurred) and Tr. 26,231-34 (Mr. O) (cooperation only prior to OARP). TMIA, in its findings, portrays the weekly quizzes more critically, however, than the record evidence fairly supports. See TMIA PF 55-60. Thus, for example, TMIA finds that "Mr. 00 is unsure of the extent to which this

[ widespread cheating) is also accepted by the training depart-ment, because ' [a] lot of the training were semi on our own'".

TMIA PF 56. Mr. OO's testimony actually was: "I do not know that they were aware of it, so I cannot say that it was accepted by them." Tr. 25,971 (Mr. 00). TMIA follows this misrepresentation of Mr. OO's testimony with the statement that "another operator, Mr. T, makes it clear that this behavior also went on when training personnel were in the room." TMIA PF 56. TMIA's reference to " behavior" from Mr. T's testimony clearly is intended to convince the reader that cheating took place in the presence of training department personnel. This 1

is not Mr. T's testimony. Mr. T's testimony under any fair reading is that on certain quizzes the operators would work

together and were so advised by the instructors. Tr. 26,507-09 (Mr. T). The instructors would not participate in these instances, because they were evaluating the operators. Id.

These mischaracterizations and misrepresentations of the record do not amount to evidence that training personnel accepted cheating and we rej ect TMIA's premise to that effect.

18. TMIA also attempts to argue that cheating on weekly quizzes might well make operators more likely to cheat on other examina tions . TMIA PF 58. TMIA again cites Mr. OO's testimony and again misrepresents it. Mr. 00 testified that cheating on weekly quizzes does not necessarily mean that cheating would occur on an exam and , that while such a result is possible, it is not likely because the importance factor between weekly quizzes and major exams "is just phenomenal." Tr. 25,974 (Mr.

00). Then TMIA goes on to speculate that the experience of regularly cheating with friends (without citation) led Mr. W to say he wasn' t concerned about the people seated behind him in the NRC exam. TMIA PF 56. Mr. W, however, had an obvious concern about the people seated behind him since he stated he tried to conceal n s collaboration with Mr. O from them. Tr.

26,090 (W).

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19. As TMIA observes , the Category T make-up exams administered as weekly quizzes af ter the Kelly examination generally suffered froh the same shortcomings as other weekly quizzes. TMIA PF 60. Licensee recognized this and required reexamination in the Category T area. LIC PF 345. The l

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November, 1981 Category T reexaminations did not suffer from the same shortcomings. Complete new examinations were con-structed, approved by NRC, and administered under Licensee's revised administrative procedures. See Lic. Ex. 73; see generally LIC PF 345. Under these procedures, the test was fully secured, examinees were 100% proctored, the exams were taken in the closed book format, and examinees were directed not to discuss the test until all operators had completed it.

See Brown, ff. Tr. 24,695, at 3 and attached Written Examination Cover Sheet. TMIA cites again Mr. OO's testimony apparently to disparage the November 1981 Category T test (TMIA PF 60); however, Mr. 00 in the testimony they cite was diccuss-ing a Category T exam in March 1981, administered as a weekly quiz. Tr. 25,983-84 (00). Further it is not surprising that Mr. H regarded the November test as similar to one he (and only three others) took in July, 1981. TMIA PF 60. By Mr. Brown's account, the July, 1981 exam had been strictly administered and proctored because of a concern on his part occasioned by past parallel answers. TMIA Ex . 75, at 16-17. There is no evidence l

to suggest any improprieties on the November, 1981 Category T reexaminations.

C. Licensee's Reaction to the O and W Aff air

20. In Section IV of its findings, TMIA provides a slant on Licensee 's response to the cheating incident which is totally out of sorts with the record. The Board considers l

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highly inappropriate TMIA's statements such as, following disclosure of the O and W similarities Licensee "immediately began to address the question of cutting its losses. The first step in this project was to attempt to maintain some measure of control over the unfolding events in the investigation." TMIA PF 61. While conceivably this could be viewed as merely aggressive advocacy in some legal settings, such baseless themes have no place in findings proposed for an adj udicator's decision. See 10 C.F.R. S 2.754(c). TMIA provides no cita-tions for these statements, and with good reason--there is no evidence to support them. No witness proposed such a theme nor was documentation introduced or offered which supports this theory. In fact, TMIA produced no witness nor investigator who faulted Licensee's recrease to the cheating incident, or its investigations. The only party other than Licensee to provide testimony on Licensee's response was the Staf f; in the Staff's view, Licensee's response was adequate and in the expert opinion of the Staf f's investigators, Licensee's investigations were reasonable and thoro ugh . See Staff PF 74, 117-120.

21. Examples of TMIA's bias in its findings in this area, in particular, are numerous. On the question of Licensee's making representatives available to employees who wanted them during NRC interviews, see TMIA PF 61, TMIA fails to note that this practice had consistently been employed throughout the numerous investigations of Licensee (including those by NRC, which had endorsed the use of representatives) since the TMI-2 l

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accident. LIC PF 296. TMIA completely misrepresents the chronology of Mr. Polon's report of rumors (apparently citing Commonwealth Exs. 8 and 9 which do not support TMIA's position) as an example of Licensee's focus on " damage control" (for which no citation is offered). Citing Mr. Hukill's notes (TMIA Ex. 60), TMIA characterizes Mr. Shipman's statements as a

" partial confession," when neither Mr. Hukill's notes of the Shipman interview nor Mr. Hukill's testimony stand for any such thing. See LIC PF 104-108.

22. TMIA begrudgingly finds Mr. Trunk's investigative efforts pass muster (TMIA PF 78); however, it is extremely critical of Licensee's other investigative efforts, chiefly those of Mr. Wilson, which it portrays as a " purely one-sided effort . . . unlikely to find out the truth." See particularly TMIA PF 79. TMIA's specific gripes af ter the fact with Licensee's efforts to uncover cheating and, in general, its response to parallelisms is unf air ; TMIA 's depiction of Licensee's efforts as a cover-up is irresponsible.

23. We begin by observing that not even TMIA charges Licensee with ignoring the cheating problem. In fact, Licensee did not. Rather, in seeking a knowledgeable investigator to review exams, through general meetings by management with employees , and through one-on-one meetings by management with l employees, sought itself to uncover any instances of cheating which may have occurred. LIC PF 242. Where indications of l

cheating were detected or specific instances identified ,

Licensee followed up by review of documents and interviews with those involved. See, e.g., LIC PF 249, 256 and 259. NRC was kept fully apprised of Licensee's ef forts and results, whether exculpatory or incriminating. Staff PF 117.

24. TMIA faults Mr. Wilson's efforts at document searches an? interviews as " designed more to create alibi's for instances of parallelism than to locate genuine instances of collusion on examinations." TMIA PF 72. The evidence does not back up TMIA 's assertion. To be sure, Mr. Wilson when he was alerted to parallelisms in exam answers by individuals did attempt to locate documentation related to the question and answer. See, e.g. Tr. 24,489 and 24,497 (Wilson). And as well, he interviewed employees whom Mr. Trunk's investigation had identified with those parallelisms. LIC PF 251. His efforts, however , were not designed to find only exculpatory evidence which he then selectively disclosed; his efforts were to locate and report on related documentation, to interview those involved, and to report the results regardless of whether the results incriminated or exculpated. LIC PF 250. Wilson's ef forts were thorough, including as TMIA points out attempts to i locate persons who had lectured who no longer were at TMI (TMIA PF 80). Similarly, his interviews of individuals involved dogged questioning. See, e.g. Tr. 25,909-11 and 25,943 (Mr. H), and Tr. 24,627 (Wilson). Most revealing, however, and contrary to TMIA 's position , is that all of Wilson's work--good news or bad from Licensee's perspective-- was produced during

discovery and openly discussed during the hearing. No claims of privilege or work product were made; all of Wilson's work, including notes, memoranda and reports, was provided. See, e .g . , TMIA 75 and 76 and Commonwealth Exs. 8 and 9 (which on their face denote " Attorney Work Product - Privileged and Confidential"). This openness on Licensee's part does not square with TMIA's position that Wilson's ef forts were only to exonerate individuals.

25. It is interesting to note the specific bases on which TMIA faults the objectiveness of Mr. Wilson's efforts. We turn to TMIA's discussion of the parallelisms of G and H which are TMIA's most extended findings in this area. For example , TMIA asserts that Mr. Wilson should have asked other operators if they knew where G and H sat. TMIA PF 81. Yet, despite the fact tha t some fif teen other licensed operators and two training instructors testified during the hearing , no one including TMIA ever posed such a question to them. In any event, it is hard to believe that any operator would remember with respect to a specific quiz given months or years earlier, where the other operators sat to take the quiz. In the case of G and H, they generally remembered where they themselves sat i because they had established a pattern. Compare LIC PF 54 and Tr. 24,509 (Wilson) with TMIA PF 81 (G and H said they did not remember where they sat) .

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26. Second, TMIA faults Mr. Wilson for not researching whether individuals with parallel answers might have done 1

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poorly on tests, which in TMIA's opinion (without record support) might suggest a motive to cheat. TMIA PF 81. Even TMIA 's ex ample , Mr . H, does not support their underlying premise . Mr. H's record on quizzes was generally poor. See Lic. Ex. 64. He failed the April NRC exam and mock-ATTS exam as well. By TMIA's homespun theory, he was a poor performer who would have been motivated to cheat on the October NRC reex amina tions . No one even suggests any cheating, however, on that exam, and Mr. H passed in all respects. Staff Ex. 32.

27. Third, TMIA faults Mr. Wilson for not inquiring into G's or H's reputation with other plant personnel. TMIA PF 81.

Again, we note that despite TMIA's implication of the impor-tance of this line of inquiry, not one such question was asked by any party, including TMIA, of any other plant employee through more than two weeks of testimony.

28. Finally, TMIA faults Mr. Wilson for accepting a simple unsworn oral denial of wrongdoing. TMIA PF 87. The simple denials, to which TMIA refers, were during extended questioning sessions by Mr. Wilson. LIC PF 251-4. These were not casual conversations. Further, that they were oral or unsworn is of no consequence, particularly since not one denial was later reversed when these individuals appeared under oath as witnesses in this proceeding. See, e.g., Tr. 25,770 (G),

25,958 (H), 25,695 (GG). TMIA's frustration that individuals whom TMIA would judge as wrongdoers deny wrongdoing under oath is not salved by either ig noring the denial or by faulting another who believes it.

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29. In one instance where TMIA takes exception to Licensee's findings, TMIA quarrels with Licensee's explanations of a parallelism between G and H answers, see LIC PF 82, and offers one of its own. TMIA PF 86. We find TMIA's supposition no more probative or logical than that of Licensee.

30. TMIA concludes with respect to G and H, that "we are left with a large number of unexplained parallelisms, many of which clearly indicate collusion between G and H. TMIA PF 103; see also TMIA PF 105 (" clear evidence that Messrs. G and H engaged in collusion"). TMIA's own findings do not stand for this conclusion. By our count, TMIA would have us find that on 6 questions on 3 different quizzes over a period of several years, G and H engaged in some form of collusion. This hardly comports with TMIA's own conclusion, not to mention the clarity of those examples. Compare, e.g., LIC PF 47-84 with TMIA PF 84-102.

31. TMIA 's findings with respect to Mr. U (TMIA PF 115-134), as Licensee pointed out in 4.ts reply findings, t

demonstrate how rumors, and depending upon the number of rumors and how widespread they are, can be woven into supposed probative evidence. TMIA is almost correct in pointing out that for a reason never clear from the evidence, "Mr. U is a remarkably consistent focal point for allegations of cheating."

TMIA PF 115. This statement could be correct with the word

" rumors" being substituted for the word " allegations." It is impor tant to note, however, that virtually every rumor about U surfaced, was heard and was passed on after the NRC investigations of cheating were initiated. See, e.g., Tr.

26,534 (Mr. I); Tr. 26,487 (Mr. KK); Tr. 26,263 (Mr. O).

Rumors were rampant, as one might expect, during this time.

Tr. 23,940 (Hukill). The only rumors concerning Mr. U which apparently existed prior to the NRC investigations were circulated by a couple of wives of employees at TMI and were reported by Mr. Polon to Licensee 's management shortly af ter NRC's investigations were begun; no source of these rumors was ever located even though each of the employees whose wives were identified with the rumors were interviewed. Tr. 26,613 (Mr.

T); Tr. 26,697-98 (Mr. P).

32. Two stories concerning Mr. U were not rumors, but provide no more probative evidence of Mr. U wrongdoing than the rumors. The first is the testimony of Mr. 00, an operator who ran into Mr. U at the coffee stand during a break from the NRC April, 1981 exam. See LIC PF 191. TMIA's treatment of this encounter (TMIA PF 125) is accurate as far as it goes in observing that Mr . 00 concluded that Mr . U had come to give Mr.

00 a chance to ask some questions about the exam. TMIA, however, fails to point out that no offer of assistance was made , no questions were asked, no answers were given, and in Mr. OO's own words, he "j umped to the conclusion" regarding Mr.

U's presence. Tr. 25,998 (00).

33. A second allegation involving Mr. U's name was the call received in the control room by Mr. KK, a shift technical

advisor , during the NRC exams in April, 1981. See LIC PF 114-127. By TMIA 's account (TMIA PF 126-132), Mr. U made the call and therefore apparently would have the Board find that Mr. U was assisting people taking the NRC examination. To support its position, TMIA asserts (without citation) that Mr.

KK does not remember the question asked of him, and points to Mr. U's testimony that on the days in question, he was studying and could have called Mr. KK to ask him a question. TMIA PF 126, 129. It cinches it for TMIA, that Mr. U uses the word

" knowingly" in denying that he provided any information to persons taking the exam. We are not as convinced as is TMIA.

TMIA 's assertion that Mr . KK does not remember the question is at odds with the record evidence; in fact, Mr. KK does remember the substance of the question and so testified. Tr. 26,481 (Mr. KK). This is hardly an unimportant oversight on TMIA's part, since the evidence is uncontroverted that the question asked of Mr. KK did not appear on the NRC exam. Tr. 25,420 (Ward). Further, the question asked of Mr. KK, by Mr. U's testimony (as well as Mr. O's, whom the KK caller said needed the information for his exam) was a simple question that Mr. U himself understood and could answer without KK's or anyone else's assistance. Tr. 26,845 and 26,847 (U). Finally, Mr.

U's failure to flatly deny ever speaking with Mr. KK during the days in question or his cautious use of the word " knowingly" are not evidence of wrongdoing on Mr. U's part. It is under-standable tha t faced with an NRC investigation generally, and in his case a number of rumors and allegations in particular (see LIC PF 121-22), Mr. U would naturally be cautious in answering questions. Because he was engaged in studying at the time, and apparently spoke with several people on the phone seeking answers to questions, as well as had conversations with others who were in and out of Mr. Husted's office where he was studying, it was not imprudent of Mr. U to exercise care in his statements. In sum, we regard TMIA's conclusions regarding Mr.

U (TMIA PF 132-133) as examples of damning an individual based on rumor and innuendo to which the Board cannot subscribe.

D. NRC Staff Investigation

34. In Section V of its findings (TMIA 11 139-147), TMIA f aults the NRC for its investigative efforts on two grounds.

TMIA of fered no evidence on this subject. Contrary to TMIA's assertion (without citation) that the Staff had a " casual attitude" toward Mr. Trunk's review of examinations, the Staff testified that they reviewed the Trunk reports and tracked Licensee's other investigative efforts by Mr. Wilson. Tr.

25,399-400 (Baci); Staff PF 74. As to the interview of Mr. P and NRC's not reporting it in its investigative report, see Staff PF 46-52, LIC PF 143-165, TMIA PF 141-147, the Staff offered an explanation which, while we may disagree with their j udgment , cannot be dismissed. Staff PF 52. Licensee surmises simply that the Staf f at the time it wrote its report was just plain not confident of the substance of the P interview. See l

LIC PF 164. In any event, we find that overall the Staff's investigations were professionally conducted and where they were terminated, the bases for curtailment were founded on sound investigative principles. See Staff PF 79-102. As Mr.

Ward testified, there were no other incidents analogous to the P interview, that were not reported. Tr. 25,417 (Ward). We find that overall the Staf f's investigation was adequate notwithstanding the two grounds upon which TMIA finds fault with the Staff's efforts.

E. Implications for Potential Restart

35. In itsSection VI, TMIA observes properly that "the

most impor tant consideration is that of the prospective implications of the material in the record." TMIA PF 148. It then points the Board at the two areas of staffing and certifi-cation. TMIA 11 149-153. We regard it as particularly noteworthy that TMIA points to no prospective problems with Licensee's or the Staff's administration of examinations--the central theme of these reopened hearings.

U

36. On staffing, TMIA concedes that Licensee has suffi-cient licensed operators to meet the staffing conditions imposed on it in the Board's earlier management decision. TMIA PF 149; see Management PID, 1583(9). Nevertheless, TMIA forecasts the potential problem that operators might leave and therefore Licensee could not then meet the conditions. TMIA PF 150. As the Board's staffing conditions contemplate, it is the Staff's duty to track future compliance with license conditions and we need not forecast future hypothetical problems and solve them now. Further, TMIA fails to acknowledge NRC's reexamina-tion of operators who failed only portions of the October exams, which cannot hurt and in all likelihood will better Licensee's current ranks of NRC licensed operators. See LIC PF 409. We give no weight to TMIA 's observation that "given the problems TMI has faced [not further specified as to relevance to the staffing question], and the public-relations problems it faces [again without explanation of relevance]," the unit "should not be allowed to limp into service." TMIA PF 151.

Finally, almost as an afterthought, TMIA singles out two individuals whom it suggests should be suspended and subjected to a polygraph test. TMIA PF 151. No reason is provided for singling out these particular individuals nor basis provided for the Board to take the extraordinary step of pursuing our authority, much less the need, of possibly directing polygraph tests. We decline to do so.

37. On TMIA 's second prospective implications issue ,

l certification, we observe first that TMIA apparently takes no issue with Licensee's present certification plans. See LIC PF 356-366. TMIA points , however , to Licensee's past performance, i particularly that "Mr. H was continuously recertified even though he failed to satisfy requirements." TMIA PF 153. TMIA cites Mr. Hukill's testimony for this statement, when in fact, Mr. Hukill said no such thing. See Tr. 24,107-08 (Hukill).

1 l

i TMIA also fails to mention that on th( October NRC examina-tions, Licensee's judgment of Mr. H's capability to take and pass the NRC exam were borne out. LIC PF 366; Staff 5x. 32.

TMIA's own example does not bear out their position. Their only other ground based on record evidence cites Mr. Newton's testimony for the proposition that Mr. Brown "apparently deceived Mr. Newton." TMIA PF 153. Again, this is not what Mr. Newton said at all. See Tr. 24,714 (Newton). Moreover, the grading problem to which this reference is made is not possible under Licensee's present procedures with which TMIA takes no issue. See LIC PF 355.

F. Factual Summary and Conclusions

38. In the final section of its findings, VII Factual Summary, TMIA concludes that cheating "while not universal, is substantial." TMIA PF 154. As we have discussed above, TMIA's own findings do not support this conclusion; the record as a whole certainly does not. See LIC PF 206; Staff PF 77. On management's involvement , TMIA points to the 1979 incident and what it characterizes as "the ef fort to cover up the evidence of cheating uncovered by Mr. Trunk". TMIA PF 154. We have faulted Licensee's actions on the 1979 incident but not to the extent TMIA would have us. Moreover, we cannot ignore either the timing of this incident or the changes in organization that have occurred in the interim, nor Mr. Arnold's apparent lack of involvement at the time in VVs certification to NRC, all of which bear on the materiality of this incident to our instant determinations regarding management's competence to restart TMI-l in 1982. See LIC PF 313-20. We reject TMIA's notion that management tried to cover up the Trunk investigations.

TMIA PF 154. To the contrary, management initially went out and secured Mr. Trunk's work; the fact that Mr. Trunk had been assigned to perform a review of examinations was volunteered without hesitancy by Licensee; all of Mr. Trunk's work was produced to other parties and provided by Licensee at the hearing; and Mr. Trunk himself appeared as a Licensee witness to stand examination by the parties. Tr. 24,830-92 (Trunk).

TMIA may quarrel with Licensee's judgments regarding the reasons for parallelisms discovered by Mr. Trunk, but this dif ference in views falls far short of sustaining a claim of

" cover-up." Nor does TMIA make a substantial case regarding either shift staffing or certification, each of which in its summary it refers to as a problem. Finally, we are left to TMIA's statement (not particularized or the subject of cita-tion) that "(a] bove all there is the general problem of accountability to the NRC and to the public." TMIA PF 154.

While no one presumably would argue Licensee does not have accountability, TMIA's bald assertion of an undefined and unexplained " general problem" with such accountability is scant reason for the Board to conclude negatively regarding Licensee's competence and integ rity. Accordingly, we reject TMIA's proposed conclusions of law (TMIA PF 155) .

IV. LICENSEE'S REPLY TO COMMONWEALTH OF PENNSYLVANIA FINDINGS A. Introduction

39. The Commonwealth purports to set forth " strong evidence" that certain individuals, namely Messrs. DD [Husted),

FF [ Shipman) and one other individual, U, GG, G and H, " parti-cipated in some form of cheating on either NRC or Licensee-administered exams or quizzes." PA PF 4. Based on this " evidence", it recommends that the NRC Staff either suspend or refrain from issuing licenses to all of these individuals except Mr. Shipman 4 pending certification of their innocence. PA PF (unnumbered) at page 47.

40. This Board is constrained to note that the Common-wealth, which heretofore in this proceeding has proposed well-reasoned, well-documented, persuasive findings, has fallen short of those high standards in its latest findings. Instead, its factual conclusions in this reopened proceeding, particu-larly with respect to the " strong evidence" of cheating, are based largely on suspicions, doubts, faulty logic and specula-tion, bolstered by rumors and fragmented circumstantial evidence. Thus, for the most part, we must reject these findings.

4 Mr. Shipman is the one individual about whom there is no disagreement. All agree that Mr. Shipman cheated when he spontaneously answered a question while he was at the coffee stand during an NRC exam. See LIC PF 102-105, 107; Staff PF 53-54 ; PA PF 26.

~

B. Extent of Cheating by TMI-l Operator License Candidates

41. We shall examine briefly each of the Commonwealth's conclusions as to Messrs. Husted, U, GG, G and H.

1. Mr. Husted

42. The Commonwealth states, without citation to one supporting witness or exhibit, that there was "little evidence" in the NRC Staff OIE Reports that Mr. Husted was directly involved in cheating at TM I . PA PF 6. In fact, there was absolutely no such evidence in any of the Reports. Staff Exs.

26-28; see also Tr. 25,415-16 (Ward).

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

43. The Commonwealth points to the alleged solicitation of Mr. P by Mr. Husted during the April, 1981 NRC SRO "B" exam as a basis on which to question Mr. Husted's integrity. PA PF

6. We rely instead on Licensee's Proposed Findings on this issue (LIC PF 243-65), and note numerous deficiencies in the Commonwealth's findings.

44. First, the Commonwealth repeatedly compares the testimony of Mr. P to that cf the NRC " investigators," the

" Staff" or the " Staff witnesses" (PA PF 10, 11, 14), when in fact the only Staff witness who testified about this matter was Mr. Ward. See Tr. 25,316-17, 25,319-21, 25,414-19, 25,459-65 l

(Ward). The Commonwealth also notes that there was no dis-agreement between Messrs. Ward and Baci regarding what occurred during Mr. P's interview. In fact, no party ever questioned Mr. Baci about this matter while he was on the stand. His silence cannot be viewed either as an endorsement or as a criticism of Mr. Ward's position.

45. The Commonwealth questions Mr. P's credibility on the Husted matter for reasons we do not find persuasive. It does not believe, for example, Mr. P's repeated and unwaivering explanations that he was not worried about solicitation during the April, 1981 NRC exam, but only started worrying about the possibility of being solicited af ter the NRC cheating investi-gation had begun. PA PF 12; Tr. 26,747-53 (Mr. P). These doubts are based on Mr. P's interpretation of a series of questions asked of him during his prehearing deposition with respect to proctoring of the NRC exam and potential solicita-tion during the exam. After interpreting and answering a series of "Did you" questions as of the time of the exam, Mr. P interpreted and answered another "Did you" , question about the potential for being solicited as of the time of the deposition.

Tr. 26,746 (Mr. P). His reason for the change in inter-pretation of the tense was simple and straightforward: he had thought a lot about the issue of solicitation af ter the commencement of the NRC investigation, and thus indicated that "my prethinking of the question had colored my judgment of the tense of it, and either I made a mistake or . . . I answered it l

1

in the present tense." Tr. 26,749 (Mr. P). He also noted that he "did not anticipate that anyone would get that technical with the dif ference between 'do' and 'did'". Tr. 26,751 (Mr.

P).

46. To focus on one question out of hundreds is to blow the matter out of proportion. Moreover, Mr. P's inattention to the tense of the question or the tense of his answer , and his statement that he did not consider the issue of solicitation until af ter the O and W incident arose, is logical and fully consistent with the testimony of virtually all of Licensee's witnesses that cheating was not given much thought prior to July, 1981. See generally LIC PF 275. In any event, even if Mr. P had admitted that he was concerned about possible solicitation at the time of the April,1981 NRC exam, such concern would shed no light on whether Mr. P was in fact solicitated by Mr. Husted during the exam.

47. The Commonwealth suggests that Mr. P "came to the hearing armed with an explanation for why he might have been misunderstood by the NRC investigators" . PA PF 9. We point out that Mr. P was specifically asked only once whether Mr.

Ward might have misunderstood his (Mr. P's) answer , and Mr . P could not make a judgment.5 Tr. 26,756-57 (Mr. P). By i

5 We do not view Mr. Ward's testimony as unequivocal on this point. He stated , when first asked on the stand , that Mr. P's answer in response to a question whether Mr. P was solicited was "somewhat ambig uous" . Tr. 25,316 (Ward).

contrast, Mr. P's concern about possible solicitation, LIC PF 152 was discussed in response to questions about his anger at the absence of 100% proctoring (Tr. 26,691 (Mr. P)), and had nothing whatsoever to do with any NRC misunderstanding.

Finally, any inference that Mr. P came to the hearing " armed with" explanations that were somehow misleading or untruthful with respect to any issue is baseless and unjustified.

48. The Commonwealth suggests that Mr. Ward had no motive to fabricate his story, and we agree. See PA PF 10.

However, it also suggests that Mr. P did have a motive to lie because he felt it would be hard to " blow the whistle" on his friends. Tr. 26,731 (Mr. P). Thus, it concludes, Mr. P must not have lied to the NRC when he allegedly told them Mr. Husted asked him a question. PA PF 14. This reasoning is illogical.

As Licensee notes in its proposed findings, LIC PF 162, if Mr.

P were concerned about protecting his friends and if he were motivated to lie, he would have lied to OIE investigators and would have denied any wrongdoing by Mr. Husted. Moreover, whether or not he had lied, under no circumstances would he have " altered his story" after speaking to the investigators, l for to do so would have been to undercut his own credibility.

l In addition, the Commonwealth blithely ignores the fact that l

Mr. P was under oath before Judge Milhollin and had every reason to be truthful.

49. The Commonwealth mentions only fleetingly that Mr.

Husted had denied asking Mr. P a question during the exam. PA l

l

~

1 l

l

. PF a; see Tr. 26,937 (Husted). Yet, it presents no basis for disbelieving Mr. Husted's repeated denials (see Tr. 26, 936-37 (Husted); Tr. 25,317, 25,320, 25,414 (Ward)), and brings forth no corroborative evidence to indicate that Mr. Husted was likely to cheat. On the contrary, both Mr. Husted's and Mr.

P's track records on exams is exemplary. See Lic. Ex. 64.

Thus, there is no reason to question the veracity of Mr.

Husted's denials to the NRC investigators or his denial under oath to Judge Milhollin. .

b. Mr. Husted's Alleged Withholding of Information

50. The Commonwealth suggests that Mr. Husted's "appar-ent" withholding of information from the NRC investigators about an overheard conversation reflects on his integrity. See PA PF 15-23. We note that although Mr . Husted did not, in fact, report this conversation to the OIE investigators during his first interview with them on July 29, 1981, (which he regarded as consisting of overly broad questions that he could not answer specifically) (Tr. 26,926 (Husted)), he did so freely during his second OIE interview on September 18, 1981 (when the questions were acceptable) . See Tr. 25,975-76 (Husted).

51. The Commonwealth states that Mr. Husted could recall with "a high degree of precision" where the overheard conversa-tion occurred. PA PF 20. In fact, the record shows that l

-- _ _ _ _ - _ _ _ _ _ _. 1

l Mr. Husted's recollection was based more on assumption than on precise recollection. Tr. 26,926 (Husted). The Commonwealth then contrasts this allegedly clear memory with Mr. Husted's failure to remember details about the individuals whom he overheard. See Tr. 25,382-83 (Ward: noting that Mr. Husted understandably could have forgotten specific facts about the overheard conversation over time). From these meager facts, the Commonwealth jumps to the conclusion that Mr. Husted was either withholding names or " callously disregarded potential evidence of cheating" when he first overheard part of the conversation. See PA PF 20. To infer on the basis of an imperfect memory that Mr. Husted was lying or used poor judgment, without citing to any corroborative evidence whatso-ever, is pure speculation. We note that the Commonwealth was more understanding towards Mr. Shipman, who also forgot details of a brief encounter. It admits that without any "hard evidence," it can not find that Mr. Shipman was being untruthful. PA PF 27.

52. The Commonwealth also concludes that if the overheard rumor "were true," it "would confirm" an opinion that operators taking the April, 1981 NRC SRO exam with Messrs. O and W were highly likely to have seen the two passing papers and that therefore individuals may have withheld information from the NRC. PA PF 18. From the words " passing papers" the Commonwealth has presumed that: (1) the individtals passing the papers were Messrs. O and W; (2) the papers were being passed during the April, 1981 NRC examination; and (3) the speakers either saw the papers passed themselves, or heard the i

story from individuals who saw the papers being passed. Based on these suppositions, supported only by Mr. Ward's speculation and Mr. W's completely unrelated testimony, and in the face of  !

I substantial testimony by proctors and numerous operators before l the NRC and Judge Milhollin that no one noticed any question-able activity by Messrs. O and W during the exam, (see Tr.

26,043-44 (Mr. A); Tr. 26,536-37 (Mr. I); Tr. 25,966 (Mr. 00);

Tr. 25,839-40 (Mr. HH); Staff Ex. 24; Staff Ex. 25, at 23 (Mr.

R), 25 (Mr. Q), 31 (Mr. S); Staff Ex. 26, at 12-13; see Tr.

25,451 (Ward)), the Commonwealth also suggests that certain operaters may therefore have lied to OIE investigators. Such reasoning is again speculative.

c. Mr. Husted's Potential Knowledge of or Involvement in Mr. U's Alleged Use of Mr. Husted's Office to Facilitate Cheating

53. The Commonwealth indicates, correctly, that just prior to the NRC exam on April 23, 1981, Mr. Husted agreed to let Mr. U use his office to study for two days. The Commonwealth also notes, correctly, that neither Mr. Husted nor Mr. U specifically remembered seeing each other in the exam room prior to the exam. PA PF 34(2). To infer, based only on these facts, that Mr. Husted may have been involved in Mr. U's facilitation of cheating on the exam, which itself is

F i

unsubstantiated, see LIC PF 183-95, is completely inappropriate. The record reveals absolutely no evidence, not even rumors, to support such an inference, and we reject it. l See LIC PF 187; see generally TMIA PF 134. l l

2. Mr. U i

1

54. The Commonwealth lists five examples of rumors, allegations and testimony with respect to Mr. U's potential cheating at TMI-1. It piles innuendo on top of innuendo and rumor on top of rumor to reach its conclusions. In fact, the more the rumors are repeated, the more credence they are given, despite the fact that the only corroborative evidence to support the truth of the underlying incidents is circumstan-tial. Based on this evidence, the ultimate conclusion drawn by the Commonwealth is that it has " substantial doubts about Mr. U's guilt (sic)." PA PF 34. We disagree that the evidence in the record supports any " substantial doubts" about Mr. U's innocence or his honesty.

I

a. Mr. U Allegedly Stationed Outside the Exam Room to Provide Answers

55. The Commonwealth recognizes, that "the multiplicity l of sources indicating the same information alone, however, does not, absent corroborative evidence, justify a conclusion that the information is true." PA PF 34. This is particularly true in the case of Mr. U, because the rumors (not " allegations" as i l

^

l

, suggested by the Commonwealth) that someone allegedly was stationed outside the exam room to provide answers, were heard only after the NRC began its cheating investigation when speculation about cheating was likely to be widespread. See, e.g., Tr. 26,599 (Mr. T); Tr. 26,987-88 (Mr. 00); Tr. 26,133-34 (Mr. W); Tr. 26,263 (Mr. O); Tr. 26,486-88 (Mr. KK); Tr. 26,534 (Mr. I). But see Tr. 25,986-87 (Mr. 00 was the only operator l who apparently thought he heard this rumor before the April, 1981 NRC exam).

56. The Commonwealth attempts to support these rumors l

with seven incidents, none of which we find supports an l

inference that Mr. U was stationed outside the exam room to l

facilitate cheating. For example, the Commonwealth notes that Mr. U went into the nonsmokers' exam room on the morning of April 23, 1981 to chat with other operators prior to the exam.

Tr. 26,879-80 (Mr. U). The Commonwealth then leaps to the proposition that Mr. U "would have an opportunity to tell the operators where he would be located." PA PF 34(2). The only i

support :or this inference is an alleged statement by Mr. KK l

l that most or all of the operators supposedly knew the location of the person stationed outside the exam room. Tr. 26,489 1

(Mr. KK). Even if Mr. KK had in fact made such a statement, it would provide absolutely no support for the proposition that Mr. U told certain operators where he would be located. A close look at the record, however , reveals that Mr. KK had heard a rumor that someone was stationed "near" or "in the

vicinity of" the exam room to provide answers to examinees.

Tr. 26,486-89 (Mr. KK). Mr. KK was never asked, nor did he indicate, that the location of this individual was ever rumored to be at a specific place. His " impression" of the rumor was that most or all of the operators supposedly knew that the individual was near the exam room to help them. Tr. 26,489 (Mr. K). Most importantly, Mr. KK heard this rumor some months after the NRC investigation began. Tr. 26,486-88 (Mr. KK).

57. The Commonwealth suggests that it stretched their credulity to learn that immediately following the April, 1981 NRC exam, Mr. U would begin studying for another exam. PA PF 34(4). The fact is, however , that Mr. U was assigned full time to training during the period of the administration of the exams, a'id studying was his job. See Staff Ex. 27, at 37; Tr.

26,834-36 (Mr. U). Moreover, Mr. Ward testified that it was plausible that Mr. U would begin studying immediately for the upcoming NRC exam because Mr. U believed he had done poorly on the April, 1981 exams and felt guilty. Tr. 25,421 (Ward). We note also that Mr. T studied immediately after the NRC exams (Staf f Ex . 27, at 37; Tr. 26,599-602 (Mr. T)), and Mr. H chrase to study immediately after the April, 1981 exams because studying was his " hobby". Tr. 25,932 (Mr. H). Therefore, we find it neither incredible nor even surprising that Mr. U was studying during the two days af ter the April, 1981 NRC exams.

58. The Commonwealth suggests that Mr. U " spontaneously" had indicated to the investigators "the possibility of a chance

. encounter at the coffee machine," during which he may unintentionally have provided a spontaneous answer to a question. This Commonwealth conclusion is based on the assumption that no one had suggested the possibility of a chance encounter prior to Mr. U's statement. PA PF 34(6); see Tr. 26,837-38, 26,882-83 (Mr. U). Although not explicitly stated, the Commonwealth appears to link Mr. U's statement to the Shipman incident. See generally LIC PF 102-113. No citations are provided for Mr. U's remarks, nor does our review of the record reveal any evidence indicating that Mr. U

" spontaneously" raised the issue without a suggestion from anyone else. Moreover , when explaining on the stand the possibility of providing a spontaneous answer, Mr. U never singled out the coffee machine as a likely location to provide an answer. See Tr. 26,837 (Mr. U). Thus, we find no connec-tion between Mr. U's remarks and the Shipman incident.

b. Telephone Call to Mr. KK

59. The Commonwealth properly observes that the record contains no conclusive evidence that Mr. U called Mr. KK to assist an operator take the NRC exam, yet it would have us view against Mr. U whatever fragmented circumstantial evidence l

exists on this matter. PA PF 38. We decline to so view this l evidence. Thus, we decline to view the rumor about Mr. U stationed outside the exam room together with Mr. KK's testi-mony about his telephone call as somehow strengthening the 1

l

reliability of both. We also decline to view Mr. U's attempt to be cautious in admitting that he may have called Mr. KK with a legitimate thermodynamics question (Tr. 26,044-47 (Mr. U)) as some sort of admission of wrongdoing on his part.

c. Rumors About Mr. O and Crib Sheets

60. The Commonwealth misstates the record by stating that a number of witnesses suggested that Mr. U cheated on the April, 1981 NRC exam and on prior exams. PA PF 39. In fact, these witnesses testified that they heard rumors to that effect, (Tr. 23,680 (Arnold); Tr. 26,274-76 (Mr. O); Tr. 26,305 (Mr. V); Tr. 24,560 (Wilson)), which rumors the Commonwealth properly notes are unsubstantiated by any direct evidence. The Commonwealth would have us consider the number of these rumors as somehow adding to the weight of the rumors already noted.

We decline to view these or any other rumors in such a manner, for without strong factual substantiation for rumors, they are nothing more than unreliable hearsay.

d. Mr. U's Cheating on Weekly Quizzes 1

61. The Commonwealth correctly points out that Mr. U 1

l admitted to having cooperated on weekly quizzes. PA PF 41.

1

They neglect to indicate, however, that his admission, "I am l sure that I have [ cooperated), yes" (Tr. 26,807 (Mr. U)), was i

sufficiently vague that it is impossible to judge whether he cooperated once or more than once, or whether such cooperation l

l L --*

occurred several years ago or more recently. Similarly, Mr.

U's statement that he used textbooks and training materials to assist him on weekly quizzes was also ambiguous as to the extent of this use and the time period in question. Tr. 26,814 (Mr. U). To support its conclusion that some cheating existed on weekly quizzes, the Commonwealth properly cites Mr. OO's admission that he cooperated on one quiz some time ago. Tr.

25,975-76 (Mr. 00). It also cites Mr. V, who admitted that some cheating on weekly quizzes took place, but did not state that he himself ha6 cheated. Tr. 26,306 (Mr. V).

62. As we noted with respect to Mr. 00, see LIC PF 139, Mr. U's cheating took place when weekly quizzes were not treated with sufficient respect by many of the operators. LIC PF 329. With the changes that have been instituted with respect to the administration of weekly quizzes, see LIC PF 347 and in light of the sensitizing effect of this proceeding on all TMI-l operators, we view it as highly unlikely that Mr. U would continue to cooperate with his peers on any quizzes.

3. Mr. GG

63. Both the Licensee (LIC PF 96-97) and the Staff (Staff PF 72-73) agree with the Commonwealth that Mr. W somehow copied Mr. GG's answers or otherwise cheated on the December 19, 1980 Category T make-up quiz. PA PF 50. The only question the parties dispute is whether Mr. GG was aware of or facil-itated Mr. W's cheating. Licensee and the Staff answer in the negative; the Commonwealth in the affirmative. We agree with the reasoning of Licensee and the Staff.

64. The Commonwealth finds Mr. GG's denial " ques-tionable," and finds it likely that Mr. W copied from Mr. GG with the latter 's knowledge, principally, it appears, because Mr. GG remembered certain facts about the quiz in question; viz, the room in which it was given and where Mr. S sat, but did not remember where Mr. W sat. Tr. 25,694 (Mr. GG). Also, Mr. GG did not remember "taking the quiz". Tr. 25,692 (Mr.

GG). Such an imperfect memory should not, without additional corroborative evidence, be deemed to indicate that an individual is lying or withholding information. In the case of Mr. GG, the Commonwealth has not shown us any persuasive evidence indicating that Mr. GG's repeated and forceful denials of cheating are in any way untruthful. Mr. W's equivocal statements that he "might have" cooperated with Mr. GG, (Tr.

26,144, 26,148, 26,153 (Mr. W)), implicate Mr. W, but not Mr.

GG.

4. Messrs. G and H

65. The Commonwealth sets forth two types of evidence with respect to the G and H parallelisms noted by Licensee's l

independent consultant Edward V. Trunk. The first type l

consists of general observations about Messrs. G and H, their study habits and quiz administration, all of which tend to i " increase slightly" the probability that the two cooperated on l

1

the quizzes. PA PF 54(1)-(4). The second type consists of specific examples of parallelisms and is considered more probative. PA PF 54(4)(a)-(f), 55. The Commonwealth suggests that all of this evidence, when taken together, is strong enough to overcome the two operators' sworn denials of cheating. We disagree.

66. Reviewing the first type of evidence, the Commonwealth would have us find that the number of parallelisms between Messrs. G and H, in and of itself, increases the likelihood that the two cheated. PA PF 54(2). We agree that the admittedly large number of parallelisms between the two individuals does raise serious questions in our minds. See Tr.

24,566 (Wilson).

67. The Commonwealth appears to have misunderstood Mr.

Trunk's testimony concerning parallelisms between operators other than Messrs. G and H (PA PF 54(1)) for, contrary to its assertion, Mr. Trunk testified that "if you looked at the whole batch of tests you would find an awful lot of ones [ paral-1elisms on questions for which many operators had similar answers] like G and H here and there once or twice and then that is it". Tr. 24,872 (Trunk).

68. Messrs. G and H testified that training quizzes were well-proctored (Tr. 25,736-37 (Mr. G); Tr. 25,872-73 (Mr. H));

see LIC PF 329, whereas operators like Messrs. 00 and U testified that quizzes were poorly proctored. Tr. 25,971-72 (Mr. 00); Tr. 26,807-11 (Mr. U). Because the latter two most l

likely took quizzes at different times and under different circumstances than did Messrs. G and H, the testimony of Messrs. 00 and U does not necessarily contradict that of Messrs. G and H with respect to how well weekly quizzes were proctored. See generally LIC PF 332.

69. Having found the Commonwealth's general evidence less than persuasive, we turn to the specific parallelisms cited.

With respect to Bernoulli's equation, we generally adopt Licens?e's proposed findings (LIC PF 70-83) as being the most detailed and accurate description of the testimony. We note briefly that the Commonwealth mischaracterized what it termed Mr. G's " continually" shifting explanation for this answer, and r we therefore reject its suggestion that Mr. G's explanation is

" highly incredible" . PA PF 54(4)(a). Mr. G's testimony that he and Mr. H found a textbook definition for the equation (Tr.

25,815 (Mr. G)) does not constitute a mysterious change from Mr. G's assumption that Mr. H memorized his quiz response on Bernoulli's equation (Tr. 25,815 (Mr. G)). Also, Mr. G testified that he alone (not he and Mr. H as the Commonwealth suggests), knew in advance that Bernoulli's equation was going to come up in training. Tr. 25,818 (Mr. G).

70. With respect to the natural circulation question (Lic. Exs. 66G, 66H (ATOG Question 3); see TMIA Ex. 75, at 1-2), Mr. John Wilson and his colleague Richard Lloyd believed it likely that Messrs. G and H memorized the training material because Mr. H's answer was identical to the handout and Mr. G's answer merely substituted the words " higher than" for "above".

Wilson, ff. Tr. 24,478, at 6. Compare Lic. Exs. 66G, 66H with TMIA Ex . 75, Attachment A, at 1. Mr. Trunk also found it probable that this was a case of memorization and not a case of cheating. Trunk, ff. Tr. 24,831 at 9; Lic. Ex. 70D, at 1. We note that two other operators, Messrs. S and Y, were found to have responded to the same question on another quiz in vir-tually the same manner as Messrs. G and H. Wilson, ff. Tr.

24,478, at 9-10; TMIA Ex. 76, at 2-3. Messrs. Wilson and Lloyd and Mr. Trunk again found memorization to be the most probable explanation for the parallelisms. Id.; Trunk, ff. Tr. 24,831, at 9; Lic. Ex. 70D, at 1. No evidence we have seen in the record dissuades us from adopting this explanation.

71. With respect to the questions about hydrogen gas generation (Lic. Exs. 66E, 66F, 66G and 66H (Accident Mitigation Question 3)) and pressure instruments (Lic. Exs.

66G, 66H ( Accident Mitigation Question 3)), we again adopt Licensee's proposed findings (LIC PF 58-63 (pressure instru-ments); 64-69 (hydrogen gas generation)) as being the most detailed and accurate descriptions of the testimony.

72. The Commonwealth would have us find that Messrs. G's and H's cantinued misunderstanding of the correct responses to questions supports the probability of cooperation. See PA PF 54(4)(d) (pressure instrument question). We do not find this assumption logical. It is to be expected that several months or a year after having taken a quiz, Messrs. G and H no longer

could provide a correct response to certain questions without reviewing the training materials once again.

73. With respect to the question about process lines (Lic. Exs. 66E, 66F (ESAS Question 1); see TMIA Ex. 75, at 10-11), Mr. G appeared to know and understand this answer quite well. He admitted to having reordered the lines by order of importance rather than listing them in the order suggested by the training materials. Wilson, ff. Tr. 24,478, at 7; TMIA Ex.

75, at 11; Tr. 25,756-57 (Mr. G). Mr. G's shift supervisor and Mr. Husted both commented that the order used in the answer was, with one exception, based on a sequence of descending impo r tance . Wilson, ff. Tr. 24,478, at 7; TMIA Ex. 75, at 11; Tr. 25,763 (Mr. G).

74. The fact that Mr. H did not immediately recognize the sequence in which he listed the lines (Tr. 25,898 (Mr. H)) does not in any way undercut his credibility. It appears that Mr. H memorized training materials for this answer, and whether or not he listed the process lines in order of importance on his March 27, 1981 quiz, he may easily have forgotten the system he used more than eight months prior to this proceeding.

75. With respect to the first of two questions about

( Lessons Learned (Lic. Exs. 66E, 66F, 66G, 66H (Lessons Learned Question 1); see TMIA Ex. 75, at 3-4), we note that Mr. G apparently was groping to explain a rationale for his answers when in fact he didn't remember very well. Compare Tr. 25,750 (Mr. G) with Tr. 25,807 (Mr. G). As he testified the first time he was asked about this answer: "Maybe they [the two areas of weakness out of five which Mr. G listed in his answer] were the top two on the list, maybe I felt that those two were more impor tant than the other answers. I do not know why I chose those two". Tr. 25,750 (Mr. G); see TMIA Ex. 75, at 4.

76. As for the second question in the Lessons Learned section of the same quizzes (Lic. Exs. 66E, 66F, 66G, 66H (Lessons Learned Question 2); TMIA Ex . 75, at 4-5), both operators thought their answer was the only correct one. TMIA Ex. 75, at 5; Tr. 25,751 (Mr. G). Mr. H's waivering on the stand (Tr. 25,891 (Mr. H)), once again, indicates only an imperfect memory. In addition, the fact that there are other possible answers (see TMIA Ex. 75, Attachment B) does not change the fact that these two may easily have studied together and reinforced each other's understanding or misunderstanding.

This circumstantial evidence is not strong enough to overcome their denials of cheating.

C. Adequacy of NRC Staff's Investigation Of Cheating

77. The Commonwealth would have us find that if the evidence tends to indicate that cheating is likely to have occurred, we can not find reasonabAe assurance that a given operator can operate the plant safely unless an adequate investigation has demonstrated that the operator is more likely to be innocent than guilty. PA PF 56. This statement sets forth a test which we simply cannot comprehend. First, the i

Commonwealth would invoke this test when the evidence "tends to" indicate tha't cheating is "likely to" occur. These terms are so amorphous, however, that we would have difficulty determining when to review an investigation for adequacy. More impo r tantly, the Commonwealth, after having applied this test, lists Messrs. DD, U, GG, G and H as operators who apparently f ailed to show themselves as "more likely to be innocent than guilty". Yet, it omits individuals like Messrs. 00 and Shipman who have openly admitted to cheating. Thus, application of this test appears to be extremely confusing.

78. Notwithstanding these objections to the Commonwealth's proposed test, we have carefully reviewed the adequacy of the Staff's investigation of cheating because it is an issue in this proceeding, and we find the investigation reasonably bounded and adequate. See LIC PF 380; Staff PF 102.

79. The Commonwealth faults the Staff for not vigorously pursuing Mr. P's alleged statement that Mr. Husted asked him a question during the April, 1981 NRC SRO exam. PA PF 57-60. It asserts that the OIE should not have relied on its prior general questioning of Mr. Husted, and should not in effect have "ignor[ed]" or " dismissed summarily" this alleged inci-dent. PA PA 60.

80. We look to the proposed findings of Licensee (LIC PF 149-50, 278-80) and the Staff (Staff PF 95, 97) on this matter, both of which give a more complete description of OIE's decision not to pursue this matter further. We note, in

particular, that OIE's failure to include a description of this incident in its initial OIE Report may be indicative of an uncertainty on their part as to Mr. P's statements regarding Mr. Husted. LIC PF 164. This may have been an added reason not to continue the investigation.

81. The Commonwealth faults OIE for investigating only five of the eight individuals who took the April, 1981 NRC exam in the room opposite Mr. Shipman. PA PF 61-63. We would agree, perhaps, that had Mr. Hukill not interviewed all TMI-l operations staff members with respect to their knowledge of cheating, OIE could be fculted for not using its resources to interview the remaining three individ uals . However, OIE clearly knew of Mr. Hukill's interviews prior to the com-mencement of its third investigation. Staff Ex. 28, at 2 (Licensee requested that OIE refrain from conducting its investigation until the Hukill inteviews were completed; OIE agreed). We do not consider it to have been unreasonable for OIE to rely on the information Mr. Hukill gleaned from his interviews. We note, also, that the information identified by the Commonwealth about a secretary possibly stationed near the coffee pot was not revealed prior to this proceeding, Tr.

l 26,368-69 (Shipman); Tr. 25,850 (Mr. HH). Therefore, no effort could have been expected by OIE to verify this information or to locate the individual.

i

! 82. We disagree with the Commonwealth's conclusions as to 1

the inadequacy of OIE's investigation of the incidents l

l

involving Mr. U. PA PF 64-65. We already have found that the question asked cf Mr. KK was not on the April, 1981 NRC exam.

LIC PF 116. Thus, there was no attempted cheating or attempted cheating by the unidentified caller. LIC PF 127. To fault OIE for not pursuing this matter under the circumstances is unjustified; the issue merited no further attention.

83. As to an independent investigation of the rumors involving Mr. U, (PA PF 64), we find that Licensee's investiga-tions were adequate in this regard, (LIC PF 257-58) and OIE need not have pursued the matter further.

84. OIE was well aware of the Trunk review and Licensee follow-up investigations. Ward, ff. Tr. 25,274, at 12, 13.

They were satisfied with these efforts (Ward, ff. Tr. 25,274, at 14; Tr. 25,337, 25,399-401 (Ward)), and appropriately decided not to follow up on these investigations.

85. In conclusion, there is insufficient probative evidence to justify a finding that the NRC Staff's investiga-tion of cheating was inadequate.

D. Adequacy of Licensee's Investigation Of Cheating

86. The Commonwealth faults Licensee in large part because it believed oral denials of cheating by the operators.

PA PF 71 (Mr. U); PA PF 72 (Messrs. GG, G and H). We note that Licensee weighed these denials in addition to other evidence before reaching its conclusions on potential cheating inci-dents. See Wilson, ff. Tr. 24,478, at 8-9. Although such L - - - - - - - - - ---

denials are not by themselves dispositive, they cannot be discounted without good cause. Also, the Commonwealth's reliance on the statements of Messrs. O and W as a basis for ignoring oral denials is misplaced. The original denials of cheating by these two individuals shed no light on the truthfulness of denials made by any other operators.

87. Finally, the operators who orally denied cheating to Mr. Wilson obviously knew that this proceeding was approaching and that they might be asked to testify. Thus, there effectively was no difference between their oral denials and written statements. The ultimate validity of those denials was demonstrated at the proceeding, because all the individuals who orally denied cheating prior to the hearing repeated those denials on the stand under oath. See, e.g., Tr. 25,770 (Mr.

G); Tr. 25,958 (Mr. H); Tr. 25,695 (Mr. GG); Tr. 26,822-23, 26,844 (Mr. U).

88. The Commonwealth misstates the record when it states that no one in GPU upper management substantively reviewed the results of the Wilson, Lloyd investigation of parallelisms. PA PF 72(4). Although it is true that Mr. Robert Arnold may not have reviewed Mr. Wilson's written reports of this investiga-tion (Tr. 23,685 (Arnold)) and did not review the training materials gathered by Mr. Wilson (Tr. 23,881 (Arnold)), Mr.

Arnold did speak regularly with Mr. Wilson about the latter's conclusions (Tr. 23,880 (Arnold)) and was aware of all developments as _ the investigation unfolded. Id.

u- - -

89. Again, the Commonwealth misstates the record when it states that Mr. Wilson did not use GPU technical personnel to determine whether answers were technically correct. PA PF 78 (8). The citation it provides to Mr. Wilson's testimony indicates that he did not ask training personnel about Messrs.

G's and H's answers to the hydrogen gas generation questions.

Tr. 24,599 (Wilson). The Commonwealth ignores, however, Mr.

Wilson's discussions with Messrs. Zewe and Husted about several of Messrs. G's and H's other answers. Wilson, ff. Tr. 24,478, at 5, 7 ; TMIA Ex . 75, at 11, 16.

90. In conclusion, we find tha t the Commonwealth has not provided sufficient probative evidence, nor have we discovered such evidence ourselves, to justify a conclusion that Licensee's investigation of cheating was inadequate.

E. Conclusions of Law

91. Based on the factual evidence presented with respect to Messrs. Husted, U, GG, G and H, the Commonwealth would have us direct the NRC Staff to revoke or refrain from issuing licenses to these five individuals pending an investigation.

PA PF (unnumbered), at p. 47. We decline to take such action, howaver , because the evidentiary record does not justify a conclusion that such further actions are necessary. We do not, therefore, reach the issues of our jurisdiction over these

, individual operators or their individual rights. We do note, l

l however, that this proceeding is being conducted under 10 C.F.R. Part 50, not 10 C.F.R. Part 55 which governs operators' licenses.

92. We also decline to direct the NRC Staff to conduct an investigation of potential suspects in the Shipman incident.

Again, the evidentiary record does not justify any further action with respect to this matter.

V. LICENSEE'S RESPONSE TO AAMODT FINDINGS A. Introduction

93. On January 18, Licensee received from the Aamodts their Proposed Findings of Fact and Conclusions of Law on Issues Raised in Reopened TMI-l Restart Proceeding ("the Aamodt findings"). See 1 3, supra. It is apparent from a review of this document that portions of the findings are missing, and that numerous statements are either unsupported by reference to the record, or contain blank spaces where citations belong, but are absent. The NRC's rules of practice specifically provide

, that proposed findings of fact shall include " exact citations l

I to the transcript of record and exhibits in support of each 1

proposed finding." 10 C.F.R. S 2.754(c). Licensee therefore rightfully ignored Aamodt findings which lacked ti.is required l record support.

B. Procedural Matters

94. The Aamodt findings take issue with a number of procedural matters which arose during the reopened TMI-l restart proceeding.

l

95. The Aamodts' first major complaint is that the reopened proceeding was unnecessarily accelerated and, as a result, the hearing failed to develop a complete record on the issues considered. See Aamodt PF 12-15, 29. In this context, the Aamodte also suggest to the Board that there sere " notable deficiencies in the record." See Aamodt PF 18-22.

96. The Board disagrees with the Aamodts' assertion that time was not of the essence in proceeding promptly with the reopened hearings on cheating-related issues. See Aamodt PF 13-14. As Licensee has argued to the Commission, a number of months of time may be consumed by the currently outstanding steps incident to resolution of the matters raised in the reopened proceeding, including the Special Master's report, followed by comments by the parties to the Board, reply comments, a Board decision, and commants to the Commission on the Board decision. Consequently, the reopened proceeding is, indeed, one of several factors which potentially control the restart date of TMI-1. See Licensee's Reply to Comments of Other Parties on Whether the Commission Should Await the Board's Decision in the Reopened Hearing on Cheating Before Deciding on the Restart of TMI-1, January 20, 1982, at 9-11.

97. In addition, while the Aamodts generally complain l about the pace of the hearing, Aamodt PF 15, no mention is made

! of the extension of the proceeding from two to three, and then to four weeks,6 in order to accommodate the numerous witnesses

[

6 In his initial Schedule for Reopened Proceeding, ff. Tr.

23,187, the Special Master reserved two weeks of hearing time.

(continued next page) who testified (36), and the thorough cross-examination of the witnesses by the parties, including the Aamodts, and by the Special Master.

98. The Aamodts' claim that the " failure of the parties to recall any management witnesses to address the grading results of the October licensing examination created a notable deficiency in the record" with respect to Issue 11, concerning staffing, Aamodt PF 18-19, falls flat in view of the absence of any request by the Aamodts for such testimony. We note that the Aamodts successfully sought, on the last day of the hearing, to introduce employment histories of TMI-l operators in order to address the adequacy of staffing. Tr. 26,786-87 (Mrs. Aamodt); see Lic. Ex. 85. Yet, while the Aamodts are critical of the absence of additional testimony on staffing, they did not even mention in their findings the documentary evidence introduced into the record at their request.

Furthermore, the Aamodts did not file a supporting response to TMIA 's Motion to Direct Execution of Affidavit and to Enter Documents in Evidence, served on January 4, 1982, which requested that several letters concerning the details of staffing for cold shutdown and plant operation be entered into (continued)

In a subsequent Memorandum and Order Following a Conference Among the Parties, October 8, 1981, at 5, the possibility of the need for three weeks of hearing was recognized. Of course, when the hearing adjourned on December 10, four weeks of hearing had been consumed.

evidence, along with an explanatory affidavit by Mr. Bukill, Vice President of TMI-1. In sum, we find the Aamodts' actions inconsistent with its avowed interest in the subject of staffing.

99. The Aamodts claim that the discovery period for the reopened proceeding was "too abbreviated to ensure complete-ness." Aamodt PP 15. But the Aamodts exaggerate the pace of discovery by ignoring the extensive informal discovery which preceded commencement of the first formal round of discovery, on October 2nd. Specifically, on September 25, Licensee produced numerous documents in response to a request from the Aamodts. See letter from Licensee to Marjorie Aamodt, dated September 25, 1981. Licensee also hand-served additional documents requested by the Aamodts at the October 2, 1981 prehearing conference. In addition, no mention is made by the Aamodts of their own tardiness in filing discovery requests, and their failure to answer very minimal interrogatories. See Letter from Licensee's counsel to Aamodt counsel, October 23, 1981; letter from Licensee's counsel to Norman Aamodt, October 26, 1981. Moreover, while it is true that testimony was due to be filed on November 3, 1981, the Aamodts in fact subsequently revised the testimony of their proposed witnesses, submitting substitute testimony.

100. The Aamodts mischaracterize the position taken by the Special Master with respect to expediting the proceeding and, in particular , Judge Milhollin's alleged failure to rule in favor of the Aamodt's motion to recall Mr. William Ward, an Office of Inspection and Enforcement ("OIE") staff witness.

See Aamodt PF 20-23.

101. In general, it is the responsibility and, indeed, the duty of a presiding officer in an NRC proceeding to prevent unnecessary delays during the hearing or an unnecessarily large record through such means as limiting the number of witnesses whose testimony may be cumulative; striking argumentative, repetitious, cumulative or irrelevant evidence; taking neces-sary and proper measures to prevent argumentative, repetitious or cumulative cross-examination; and imposing reasonable time limitations on arguments. See 10 C.F.R. S 2.757; see also 10 C.F.R. S 2.753, regarding other measures to " expedite the presentation of evidence." In fact, in a recent Statement of Policy on Conduct of Licensing Proceedings, the Commission stated, " Individual adj udicatory boards are encouraged to expedite the hearing process by using those management methods already contained in Part 2 of the Commission's Rules and Regulations." CLI-81-8, 13 N.R.C. 452, 453 (1981); see also amendments to NRC's Rules of Practice "to facilitate expedited conduct of its adjudicatory proceedings," 46 Fed. Reg. 30,328 (June 8, 1981).

102. With respect to the specific request by the Aamodts that staff witness Ward be recalled, the Aamodts do not state in their findings the reason why their oral request, made i

during the evening of the last day of the reopened hearings, l

l was denied by Judge Milhollin, viz. , that the testimony of Mr.

Ward on the subject of which the Aamodts sought clarification was " fully described in his testimony." Tr. 26,996-97 (Milhollin). The Aamodts perhaps misconstrue, and certainly have no basis for finding fault with the Special Master's statement on the first day of the reopened proceeding that it was his duty to see to it that a complete record was compiled.

See Aamod t PF 21. Moreover, the Special Master's observation in no way relieved the Aamodts of their responsibilities as an intervening party in the proceeding. Id.

103. The Aamodts argue that the sequestration order to which the parties stipulated was violated by Licensee. Aamodt PF 16, 56. Licensee disagrees, referring the Board to its Response to Aamodt Motion for Reconsideration or , in the Alternative, Motion for Directed Certification, dated January 19, 1982. We concur with Licensee's reading of the sequestra-tion order.

104. The Aamodts also claim that the confidentiality agreement, to which all the parties also stipulated, was violated by individuals O and W and that, consequently, the stipulation should have been rescinded with respect to those two individuals. Aamodt PF 17. The Board considers this issue to be moot in view of the Aamodts' failure to assert their views on this subject at the time the specific matter was discussed during the proceeding , see Tr . 26,241-47 (Milhollin, McBride, Goldberg, Adler, Blake), or at any time prior to the filing of their proposed findings.

1,05. The Aamodts' last essentially procedural objection pertains to the number of witnesses who appeared and testified d uring the proceeding . See Aamodt PF 23-24. The Board makes the following observations in response to the Aamodts' findings on this subject.

106. Licensee, the Staf f and the Aamodts filed prepared testimony of eighteen witnesses in the reopened proceeding.

All of the parties, including the Aamodts , then entered into an agreement, approved by the Special Master , with respect to additional witnesses whose appearance, without prepared testimony, was desired. See Tr. 25,220-26 (Milho111n, Blake, Goldberg); see also Tr. 25,262-64 (Blake). Nineteen individuals were included on this list. Thus, contrary to the Aamodts' claim that Judge Milhollin "did not facilitate the appearance of a number of witnesses that either he or the Board indicated that they would call," Aamodt PF 23, under Judge Milhollin's guidance, after extensive discussion on and off the record, a list of witnesses agreed upon by everyone was generated.7 Further, faulting Judge Milhollin on this score is particularly inappropriate, given the fact that he later added another witness, Mr. GG. Tr. 25,570 (Milho111n).

i 7 Judge Milhollin did decline to call Mr. Davis, an NRC consultant, as a Board witness; however, the Aamodts were instructed by the Special Master tha t they should determine l whether they wanted to call him as their own witness. Tr.

I 25,239-40 (Milhollin). Nothing further was heard from the Aamodts concerning Mr. Davis.

107. With respect to the witnesses for whom the Aamodts filed prepared testimony, one of these individuals, Dr.

Molholt, testified. See Molholt, ff. Tr. 25,185. The testi-mony of another of these individuals was withdrawn by the Aamodts. Tr. 26,545-47 (Mr . Aamodt) .8 Finally, without any citation to the record , the Aamodts totally miri. tate Judge Milhollin's ruling with respect to the third Aamodt witness, Mr. Williams. Judge Milhollin did not state that he "consid- 1 ered Mr. Williams competent to put his testimony into the record." Aamodt PF 27. Rather , on the basis of a lengthy voir dire of the witness by Licensee's counsel, followed by ques-tioning by the Aamodts' counsel and Judge Milhollin, Judge Milhollin sustained Licensee's objection (joined by the Commonwealth and the Staf f) to the admission into evidence of Mr. Williams' testimony, in view of the fact that "the value of the direct testimony of this witness to the issues in this 8 The Board notes that on November 19, 1981, counsel for the Aamodts represented that Dr. Holzinger would be available to testify the next day, in accordance with a previously agreed-upon order of witnesses. Tr. 24,824, 24,829-30 (Clewett).

However , the Aamodts did not make Dr. Holzinger available the next day. Tr . 24,909-10, 24,917 (Clewett). As a result, Dr.

Holzinger's appearance was put of f to a more convenient date.

Tr . 24,918 (Milhollin). Subsequently, the Aaamodts decided not to call Dr. Holzinger. Tr. 26,545-47 (Mr . Aamod t) . While the parties clearly were prepared to cross-examine this witness, no

" th rea ts " about the length of the proceeding , as suggested by the Aamodts, Aamodt PF 27, were made by Licensee and the staff at any time. In fact, the references cited by the Aamodts concern statements made by the parties af ter the Aamodts decided not to offer this witness . See Tr. 26,547-48 (Blake, Milhollin , Adler , Goldberg , Bradford) .

hearing is very slight," and "the slight probative value" of the testimony was " completely undermined" by Mr. Williams' demeanor and lack of credibility on the witness stand. Tr.

25,031-32 (Milhollin); see LIC PF 321-323.

108. The Aamodts next suggest that there were matters of substance which the Special Master improperly did not pursue which were within the scope of the proceeding. See Aamodt PF 28, concerning Mr . Hartman , and Aamod t PF 34, concerning the accelerated attrition of operators. The Aamodts make no mention of TMIA's decision to withdraw the name of Mr. Hartman as a potential witness in the proceeding, Tr. 25,331-32 (Bradford); nor do their findings reflect the fact that a number of witnesses who testified during the proceeding were asked about and did not corroborate what the Aamodts describe as Mr. Hartman's allegation, viz., that cheating occurred on NRC oral examinations. See, e.g., Tr. 26,416 (Shipman); Tr.

26,466 (Crawford); see also Tr. 25,540 (Boger). With respect to the Aamodts' other complaint, concerning their inability to l

develop information concerning the accelerated attrition of operators, the Aamodts were given every opportunity to discover whether the attrition of operators related in any way to cheating; in fact, based on the Aamodts' efforts, it was determined that these individuals did not in fact leave

Licensee's employ because of cheating. Tr. 25,331 (Clewett);

1 I see generally I.IC PF 27, n.14.

r l 109. ,

Finally, the Aamodts complain about the schedule for I

proposed find ing s . See Aamodt PF 31-34. We dismiss the

=

w ,

r Aamodts' concerns, here, in view of the fact -- which they acknowledge -- that this schedule was " agreed upon by the parties." Aamodt PF 31.

C. Substantive Findings 110. Aamodt findings 37-43 concern the extensiveness of cheating by operators O and W, and evidence which, the Aamodts claim, support the fact that others withheld information 1

concerning their observations of O's and W's conduct during the April, 1981 NRC operator examinations. In response to these Aamod t findings, Licensee relies upon its initial proposed findings, which squarely address the views expressed by the Aamod ts . See LIC PF 28, 34-45, 389-390. We adopt Licensee's understanding of the facts. In summary, we believe that the evidence shows that Messrs. O and W cheated extensively on the April, 1981 RO and SRO exams; however, in our view, the evidence does not substantiate the Aamodts' assertion that other operators, particularly Mr. A and Mr. I, must have seen l the cheating which occurred. We express here the primary grounds for our rejection of Aamodt findir.gs 37-43.

111. First, while Dr. Molholt may conclude that it is i "hardly possible to imagine that . . . other operators were l

unaware of what O and W were doing," Aamodt PF 37, we cannot reconcile this admitted " assumption," Tr. 25,200 (Molholt),

with the Staff proctors' failure to observe any misconduct between 0 and W, even though one proctor walked directly by the r

table at which Messrs. O and W were sitting. See LIC PF 42-45; Tr. 26,041 (Mr. A).

112. Since "the testing room was unproctored for long periods of time," the Aamodts conclude that Mr. A was dishonest in not so stating during his July 28, 1981 OIE interview.

Aamod t PF 38. In fact, the nonsmokers room in which O and W sat during the Set "B" session of the NRC exams given on April 23 and 24, 1981, was one of the rooms that was proctored fairly well, although certainly not 100 percent of the time -- 7 to 8 out or the 9 hours1.041667e-4 days <br />0.0025 hours <br />1.488095e-5 weeks <br />3.4245e-6 months <br /> on the 23rd, and 4 to 5 1/2 hours out of the 7 hours8.101852e-5 days <br />0.00194 hours <br />1.157407e-5 weeks <br />2.6635e-6 months <br /> on the 24 th . See LIC PF 389. Mr. A's failure to note the proctors' absences does not seem to us to be at all irregular , muchless dishonest, particularly in view of Mr. A's concentration on his exam, and examiner Wilson's acknowl-edgement that less than 100% proctoring was normal NRC practice at the time. See LIC PF 387, 388, 391; Staff PF 163-167. Nor do we find there to be record support for the Aamodts' unsub-stantiated speculation that "It is unlikely that A would turn-in co-workers of long-standing, particularly in view of his feelings, and once , having taken that position, reverse I himself at detriment to himself." Aamodt PF 38. In sum, we believe that Mr. A did not see O and W cheat.

113. In general, we note that the Aamod ts ' findings on the subject of observations of O and W's cheating, see Aamodt PF 38-43, assume individuals lied about not seeing O and W cheating, and then speculate, without any reference to the t

record, about possible motivations for such misconduct. In addition, the Aamodts misquote the record. Compare , e .g . ,

Aamodt PF 39, "Mr . A's and Mr . I's testimonies that they did not recall seeing anyone in the halls or office on their trips to the bathroom and coffee machine is clearly not forthcoming ,"

with Mr. A's testimony that "I saw individuals [in the hallway when I went to the rest room or the cof fee stand] , but I do not know who. I do not remember who." Tr. 26,043 (Mr. A); and Mr. I's testimony that, "I cannot say with any certainty if I did or did not [ meet anyone in the hallway or in the bathroom),

but there were people working there , and I am quite sure I passed people." Tr. 26,535 (Mr. I).

114. Perhaps the most aggregious example of the liberties taken by the Aamodts with the record occurs in their statement that "[a]nother reason, the investigators considered, was that the o and W collusion was not considered wrong at the time, perhaps being viewed as a cooperative effort. Tr.

25,385-25,366 (Ward)." Aamodt PF 42. The passage to which the Aamodts refer concerns Mr. Ward's speculation as to why Mr. O and Mr. W cheated , and why the cheating was not detected by individuals in the room -- either proctors or examinees. After describing Mr. O's lack of confidence in his ability to pass the examination, and Mr. O's hypothesized motivation of

" concern for his fellow worker ," Tr. 25,384 (Ward), Mr. Ward also stated that he believed Mr. O had sought answers from Mr.

W (as well as visa-versa), because "he felt that this would 1

help him achieve even a better score," or "perhaps maybe he did it to make W feel that it was a cooperative effort, maybe to placate his feelings." Tr. 25,385 (Ward). With respect to observations of these activities by others, Mr. Ward stated:

I think that it is possible that somebody did see this take place. They perhaps either did not note that it was something wrong, notice that it was cheating -- in other words, saw the actions but did not attach any significance to the actions -- or it is possible also that somebody saw that, recognized it was cheating, but out of peer group loyalty failed to report it and failed to admit it during questioning.

All these are possible.

Tr. 25,386 (Ward). None of these statements amounts to TMI-l personnel considering Mr. O and Mr. W's conduct acceptable, as the Aamodts suggest. See Aamodt PF 42. In fact, the record clearly reflects the clear recognition by TMI-l operations personnel that Mr. O and Mr. W's conduct was reprehensible.

See, e.g., Tr. 25,917 (Mr. H); Tr. 25,993 (Mr. 00); Tr. 26,317 (Mr. V); Tr. 26,579, 26,581 (Mr. I); see generally LIC PF 275-276.

115. Aamodt findings 44-74 discuss the Aamodt's inter-pretation of further evidence of withholding of information and other cheating behavior. Licensee relies upon its initial l findings with respect to the incidents discussed by the l

l Aamodts. Compare, e .g . , Aamodt PF 44-45 with LIC PF 102-113.

l However, several statements contained in this portion of the Aamodt findings deserve comment.

116. In Aamodt PF 44, it is asserted that individual T, among others, withheld information and/or lied. However, none of the subsequent Aamodt findings reference Mr. T.

.em 117. We do not agree with the Aamodts that "a careful reading of the summary of the [ initial] interview" of Mr.

Husted indicates that Mr. Husted's explanation of why he did not answer the investigators' questions is "not truthful."

Aamod t PF 47. Clearly, Mr. Husted was not being overly cooperative, for which he was subsequently self-critical, Tr.

26,928 (Husted); however, this is not concomitant with lying to the Staff.

118. Moreover, the Aamodts' indictment of Mr. Husted rests largely on their misquotation that Mr. Husted " testified that he intentionally did not answer the question [regarding what rumors he heard) . . . because he decided that it was not impor tant . Tr. 26,9'32 (DD)." Aamodt PF 48. In fact, Mr.

Husted stated, with respect to his not initially describing to the investigators the rumor about " passing papers,"

I at no time thought that hearing part of a conversation, which I recalled vaguely hearing-two words said, could in any way aid in any investigation into cheating on an exam.

Otherwise I would have told them. . . . It was not until after the July interview that I even thought that there was any importance in what I l could have possibly heard. ,

l l Tr. 26,932 (Husted).

119. We note also that in Aamodt PF 49, a representation is made that a statement was signed by Mr. Husted during his second interview. However, the record simply reflects the ' fact that Mr. Husted was very cautious about the specific questions he was asked, and the answers he gave, asking the interviewer l 1

to write down the questions and answers. Tr. 26,967-68 (Husted). It was Mr . Aamodt who , on the record, assumed the statement was signed. See Tr. 26,967-68 (Mr . Aamodt) .

120. In addition, a review of the citations on which the Aamodts rely, indicates that .the Aamodts are incorrect in stating that Mr. Husted changed his story with respect to where he heard the rumor concerning " passing papers." See Tr.

26,924-27 (Husted). Rather , in this passage, Mr. Husted describee this reasoning for locating the conversation "between the cof fee pot and the men's room."

121. With respect to the Husted/P allegation, Licensee takes issue with the Aamodts' characterization of Licensee's findings, contained in Aamodt PF 67. The Aamodts provide no citations to the record in their entire refutation of Licensee's findings on the Husted/P allegation. While the Aamodts may choose to believe their version of the facts and, on that basis, find " absurd" Licensee's explanations for the inconsistency between Mr. Ward's testimony, on the one hand, and Mr . Husted 's and Mr. P's testimony, on the other , the absence of record support for their theory is telling. At

' best, the Aamod ts ' view is highly speculative.

122. While Licensee also relies upon its findings with respect to the KK incident described by the Aamodts in Aamodt PF 70-75, see LIC PF 114-127, it takes exception to the Aamodts' bold assertion that "[t] here is no record evidence that refutes the allegation" that Mr . U telephoned Mr . K. See Aamod t PF 75. For one thing, while Mr. U unequivocally stated that he may have called Mr. K to seek his assistance while Mr.

U was studying for exams, Mr . U also indicated that he did not and never would have called Mr. K concerning the question at issue, because it was an easy question to which he knew the answer. Tr. 26,844-46 (Mr. U); see generally LIC PF 121.

Licensee also notes the fact that the question at issue was not on the NRC April, 1981 exams -- a fact which the Aamodts ignore, but which eliminates the possibility of the caller serving a cheating function, and refutes the caller's statement of his purpose and , arguably, his identity. See Staff Ex. 27, at 31; see icnerally LIC PF 116; Staff PF 34.

123. The Aamodts next section of findings takes issue with the thoroughness of Mr. Trunk's investigations. See Aamodt PF 200-206. Here, the Aamodts challenge Mr. Trunk's ability to have discerned cheating on the exams he looked at, given the amount of time he spent reviewing exams. What the Aamodts ignore , however , is the fact that Mr. Trunk did not use the technique on which the Aamodts' analysis relies, namely, individually comparing each exam answer to every other exam answer. Rather , Mr. Trunk and his associate reviewed the exams by reading slowly through each answer from all exams once, calling out peculiarities in the answers. Tr. 25,845-46 (Trunk); see also LIC PF 245. The Aamodts calculation, multiplying the number of questions exponentially, is therefore inapposite.

124. The Aamodts also take out of context Mr. Trunk's statement regarding the difficulty of his task. See Aamodt PF 203. While Mr. Trunk did state that it is difficult to "see" all of the answers as a group, he then explained that af ter each answer was read individually, it was reviewed a second-time if nothing unusual was noted; he also stated that he utilized this method in response to Mr. John Wilson's request that he "do an extremely thorough job." Tr. 24,846 (Trunk). Moreover, contrary to the Aamodt's suggestion, Aamodt PF 205, Mr. Trunk's statement that "we had to let it go" refers to the fact that where Licensee's investigator, Mr. Wilson, was unable to provide Mr. Trunk with information, such as training materials, which substantially diminished the likelihood of collaboratiors on a particular test, Mr. Trunk's conclusions remained reg arding the suspiciousness of particular simi-latities. See Tr. 24,857 (Trunk).

125. The Aamodt findings end with a discussion of the extent of Licensee management's knowledge of, encouragement of and negligent failure to prevent cheating. Aamodt PF 250-254.

4 Licensee relied here, as well, on'its previous findings on this issue. See LIC PF 208-241; see also Staff PF 122-127.

4 Dated: January 22, 1982.

Respectfully submitted ,

SHAW, PITTMAN, POTTS & TROWBRIDGE M f. *.4,A.

George F. Trowbridge Ernest L. Blake, Jr.

Deborah B. Bauser Bonnie S. Gottlieb Counsel for Licensee 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 l

l i

I l

l

I-s LIC 1/22/82 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

Docket No. 50-289 SP

)

METROPOLITAN EDISON COMPANY ) (Restart)

(Reopened Proceeding)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing

" Licensee's Reply to Findings Proposed by Other Parties in Reopened TMI-1 Restart Proceeding" was served this 22nd day of January, s

1982, by Federal Express for delivery tomorrow to Administrative Judge Gary L. Milhollin, and by deposit in the United States mail, postage prepaid, addressed to all other persons on the attached Service List.

&A4 M4+.

Ernest L. Blake,'Jr.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of ,)

)

METROPOLITAN EDISON COMPANY ) Docket No. 50-289 SP

[Three Mile Island Nuclear (Restart)

Station, Unit No. 1) )

SERVICE LIST Administrative Judge Robert Adler/ Esquire Ivan W. Smith (2) Karin W. Carter, Esquire Chairman, Atomic Safety and Assistant Attorney General Licensing Board 505 Executive House U.S. Nuclear Regulatory Commission Post Office Box 2357 Washington, D.C. 20555 Harrisburg, PA 17120 Administrative Judge Attorney General of New Jersey Walter H. Jordan Attn: Thomas J. Germine, Esquire Atomic Safety & Licensing Board Deputy Attorney General 881 West Outer Drive Division of Law - Room 316 Oak Ridge, Tennessee 37830 1100 Raymond Boulevard Newark, New Jersey 07102 Administrative Judge Linda W. Little John A. Levin, Esquire Atomic Safety & Licensing Board Assistant Counsel 5000 Hermitage Drive Pennsylvania Public Utility Raleigh, North Carolina 27612 Commission Post Office Box 3265 Administrative Judge Harrisburg, PA 17120 Gary L. Milhollin Atomic Safety & Licensing Board John E. Minnich 1815 Jefferson Street Chairman, Dauphin County Board Madison, Wisconsin 53711 of Commissioners Dauphin Courty Courthouse James R. Tourtellotte, Esq. (4) Front and Market Streets i Office of Executive Legal Harrisburg, PA 17101 Director U.S. Nuclear Regulatory Commission Walter W. Cohen, Esquire Washington, D.C. 20555 Consumer Advocate Office of Consumer Advocate Docketing & Service Section (3) 1425 Strawberry Square Office of the Secretary Harrisburg, PA 17127 U.S. Nuclear Regulatory Commission ,

Washington, D.C. 20555 Chairman, Atomic Safety &

Licensing Board Panel Robert O. Pollard U.S. Nuclear Regulatory Commission 609 Montpelier Street Washington, D.C. 20555 Baltimore, MD 21218 Chairman, Atomic Safety & Licensing Appeal Ecard Panel U.S. Nuclear Regula: cry Commissicn Washington, D.C. 20: 55

s .e Jordan D. Cunningham, Esquire William S. Jordan, III, Esquire Fox, Farr & Cunningham Harmon & Weiss-2320 North Second Street 1725 Eye Street, N.W., Suite 506 Harrisburg, PA 17110 - Washington, D.C. 20006 Ms. Louise Bradford Chauncey Kepford TMI ALERT Judith H. Johnsrud 1011 Green Street- Environmental Coalition on Harrisburg, PA 17102 Nuclear Power 433 Orlando Avenue Ellyn R. Weiss, Esquire State College, PA 16801 Harmon & Weiss 1725 Eye Street, N.W., Suite 506 Marvin I. Lewis Washington, D.C. 20006 6504 Bradford Terrace Philadelphia, PA 19149 Ms. Gail Phelps ANGRY Mr. Norman Aamodt 245 West Philadelphia Street R. D. 5 York, PA 17404 Coatesville, PA 19320 Mr. Steven C. Sholly -

Union of Concerned Scientists 1725 Eye Street, N.W., Suite 601 Washington, D.C. 20006 9

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