ML20040G326
| ML20040G326 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 02/10/1982 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| CLI-82-01, CLI-82-1, ISSUANCES-OL, NUDOCS 8202120164 | |
| Download: ML20040G326 (8) | |
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C ?. yy UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION.22 F COMMISSIONERS:
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B Nunzio J. Palladino, Chairma Victor Gilinsky 8
4 Peter A. Bradford N
John F. Ahearne 4
RE M ED Thomas M. Roberts 5
FEB 1'11982>.
RVED FEB 1 0 1982 W amgs!amey }
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In the Matter of e,.,
p PACIFIC GAS AND ELECTRIC COMPANY
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Docket No. 50-275 0.L.
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50-323 0.L.
(Diablo Canyon Nuclear Power
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Plant, Units 1 & 2)
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STATEMENT OF THE COMMISSION 4
CLI-82 1 The Commission has directed the NRC staff to issue a Notice of Violation with regard to statements made by representatives of Pacific Gas and Electric Co. (PG&E) at a public meeting with the NRC staff on i
November 3,1981.
These statements concerned PG&E's review of a report prepared by its consultant, R. L. Cloud Associates, Inc., addressing the ongoing seismic reverification program for Diablo Canyon Nuclear Power Plant. On the basis of the Report of the.Special Investigation by the NRC staff (NUREG-0862, Issue 2), the Commission has concluded that statemerf,s made at that meeting and PG&E's subsequent failure to correct those statements constitute material false statements in violation of Section 186a of the Atomic Energy Act, as amended.
Due to concern about these violations and about the communication of information among PG&E officials and personnel and 9kba\\
8202120164 820210 PDR ADOCK 05000275 0
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between PG&E and the NRC, the Commission has directed its senior staff to meet with officials of PG&E to discuss an apparent lack of attention on the part of PG&E to its responsibilities in this area. The Commission intends PG&E to take steps as a result of this meeting to remedy this situation.
The Commission is taking no action at this time regarding PG&E's nomination of R. L. Cloud Associates, Inc. as primary auditor in its reverification program.
Separate views of Chairman Palladino and dissenting views of Commissioners Ahearne and Roberts are attached.
FOR THE COMMISSION.
JD SAMUELJ]CHILK Secretary of the Commission Dated at Washington, D.C.
this 10th day of February,1982.
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Additional Views of Chairman Palladino:
I believe that the information obtained from Pacific Gas and Electric Company (PG&E) during the November 3 meeting constitutes a material false statement.
The fact that'Mr.
l Norton's statement was false is confirmed by him during the investigation.
The failure of PG&E to correct the statement r
i despite opportunity to do so is also clear from the inves-tigation.
The fact that reviewer independence was a matter 4
of concern in the reverification program that was being discussed on November 3, I believe, makes this statement a material false statement.
The statement by Mr. Norton had the capability to influence the NRC staff with regard to the I
matter of independence.
See In the Matter of Virginia l
Electric Power, 4 NRC 480, 487 (1976).
I have arrived at the conclusion that there has been a material false statement contrary to the Atomic Energy Act based on my review of the facts as set forth in the Report of the Special Investigation.
I have voted to issue the notice of violation solely because I believe it is correct.
i Commissioners Bradford and Gilinsky agree with these views.
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DISSENTING VIEWS OF COMMISSIONER AHEARNE
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e I disagree with the Commission's action because it establishes an unacceptably low threshhold for a material false statement.
I believe we should establish that licensees and applicants have two obligations when communicating with the NRC:
i representatives should be sure the basic information they provide is accurate, and they should never lie.
We need good information to make sound regulatory decisions.
Consequently we must receive accurate information, regardless l
of whether the licensee's representatives are aware of
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inaccuracies or not.
Holding licensees liable for incorrect information, regardless of knowledge, should encourage 1
responsibility for assuring accurate information.
- However, I
it is not realistic to expect people to be perfect nor is it critical to our regulatory activities.
We should focus on important information.
Nevertheless, deliberately misleading the NRC undermines the entire regulatory framework.
Thus I would hold a licensee responsible for any statement, regardless
.of significance, which is deliberately false.
Therefore, if there is an incorrect or misleading statement or omission, I would ask two questions in considering whether the NRC should take action:
(1) Was the statement made with knowledge that it was false?
(2) What significance does,it i
have?
If a statement was deliberately false, action must be taken.
The statement's significance will affect the penalty.
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If the statement was not deliberately. f alse, but was significant, action also must be taken.
If the statement was neither deliberately false nor significant, action should not be taken.
In this case, based on I&E's investigation report and interviews, and the transcript of the November 3 meeting, I am unable to conclude that any incorrect statements were deliberate.
With respect t'o significance, I do not believe the nature of the information was such that one would reasonably conclude the information was of significance.
Most of the arguments l
on significance have gone to the fact that the statements were false, not to any inherent importance of the information.
The Commission bases its determination of materiality on the r
supposed relation to the question of independence of the reverification program.
However, the NRC had given no guidance on the meaning of independence, the behavior met standard practice concerning drafts by independent consultants, and my interpretation of the context of the November 3 meeting is that this was a peripheral issue.
Therefore, I do not agree that the information was suf ficiently significant to provide a basis for a violation.
I agree the conduct in this case was not the best.
I believe tha t Mr. Norton, as chief representative of PG&E, was inadequately prepared for the meeting.
Mr. Rocca and Mr. Houk apparently believed misleading statements had been made.
I believe
3 they should have pursued the issue more aggressively.
There have been suggestions that this is symptomatic of a general failure of PG&E to encourage its employees to fully participate and to provide appropriate information.
Dr. Cloud should have clarified the matter at the meeting.
However, none of this conduct rises to a level which justifies finding a violation.
6 My conclusions are reinforced by the findings of Phase Two of the investigation.
If the investigation had revealed changes had been made to put PG&E in a significantly better light, I would have reexamined the available information for possible indications that people deliberately' misled us (since those findings would have revealed an incentive to do so).
However, the almost total lack of significance in the changes supports the conclusion that the statements were not deliberately incorrect.
Not finding a violation will cause a major pr.oblem with public perception.
The general impression seems to be-that there is a serious issue here.
People are watching to see what action the NRC will take.
Not taking action will reinforce the view that we are not sufficiently tough on the industry.
I am sympathetic to this concern.
Public perception affects our ability to accomplish our mission.
However, I am not willing to take an enforcement action unless I am convinced that it is the correct thing to do.
In this case
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4 the statements do not rise above my threshhold:
I conclude they were neither deliberate nor significant.
Thus, although I support discussing the general problem mentioned above with the appropriate PG&E of ficials, I cannot support issuing a notice of violation.
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SEPARATE DISSENTING VIEW OF COMMISSIONER ROBERTS I take strong exception to this action by:the Commission.
'It would appear that there was a. false statement.
It is not at all ap-parent to me, however, that this statement was a material false statement within'the sense of the Atomic Energy Act.
Section 186 of that Act indi-cates that a material false statement must be either a statement in an
. application or a statement of fact required under section 182 (which Il concerns the contents of an application). The statement at issue does not
. fall within these requirements.
Additionally, to justify this action on the basis of the decision in Virginia Electric and Power Co. (North Ar.na Power Station, Units 1 and 2), CLI-76-22, 4 NRC 480, 487 (1976) is spurious. That case also involved statements and lack of statements in an
- application.
There is a quantum leap from statements made in a meeting l
'(even considering a transcript was made and offered to the participants for review) to statements or lack of statements made in a license ' application.
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Under the Atomic Energy Act, a statement cannot be a " material false.
statement" merely because it is false, capable of influencing judgment, and relates to a matter of concern. Thus, by the yardsticks of logic, common sense, and the Atomic Energy ~ Act, this circumstance cannot rise to the level of a material false statement.
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