ML20053A422
| ML20053A422 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/21/1982 |
| From: | Goldberg J, Wagner M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 8205260084 | |
| Download: ML20053A422 (25) | |
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UNITED STATES OF AMERICA i
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
11ETROPOLITAN EDIS0N COMPANY, ET AL.
Docket No. 50-289 5
(Restart)
(Three Mile Island, Unit 1) l NRC STAFF'S COMMENTS ON THE REPORT OF THE SPECIAL MASTER Jack R. Goldberg Counsel for NRC Staff Mary E. Wagner Counsel for NRC Staff l
May 21, 1982 DESIGNA ORIGINAL R
Certif.1ed By 8205260084h fo/
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1-TABLE OF CONTENTS Page I ~."
INTRODUCTION.......................
1 II.
COMMENTS ON THE SPECIAL MASTER'S FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATIONS 2
A.
The Extent of Cheating 2
B.
Management's Involvement in Cheating 3
1.
Mr. Ross....................
3 2.
The Definition of Management....
3 C.
The Licensee's Response to the Cheating.......
4 D.
The Licensee's Training and Testing Program....
7 E.
The Licensee's System for Certifying Candidates...
9 F.
The NRC Examination.................
10 1.
Proctoring and Grading.............
10 2.
Content of the Examination...........
10 G.
The NRC Staff's Response to the Cheating 14 III. THE EFFELT OF THE SPECIAL MASTER'S FINDINGS AND CONCLUSIONS ON THE LICENSING BOARD'S MANAGEMENT PARTIAL INITIAL DECISION.................
20 IV.
CONCLUSION........................
22 OO
.O 1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of METROPOLITAN EDIS0N COMPANY, ET AL.
Docket No. 50-289 (Restart)
(Three Mile Island, Unit 1)
NRC STAFF'S COMMENTS ON THE REPORT OF THE SPECIAL MASTER I.
INTRODUCTION On April 28, 1982, the Special Master issued his Report of the Special Master (Report) on the issues related to operator cheating at TMI-1.
In a Memorandum and Order Regarding Licensee's Motion to Reopen the Record dated May 5, 1982, the Licensing Board issued a " tentative final draft" of a portion of its forthcoming initial decision on operator cheating. The portion is limited to the allegations that Licensee's Manager of Plant Operations at TMI-1, Mr. Michael Ross, improperly broadened the answer key to the NRC's April 1981 examination and inten-tionally kept the NRC proctor away from the examination room in order to aid the examinees in cheating. The Licensing Board requested the parties to comment on its tentative final draft concerning Mr. Ross, as well as the balance of the Special Master's Report. The parties' comments are required to be in the hands of the Licensing Board and participating parties on May 24, 1982.
The Staff submitted proposed finding's of fact and conclusions of II law on all the issues in this reopened proceeding
,as well as replies to the other parties' proposed findings.2_/ The Staff believes those proposed findings and reply findings accurately reflect the evidence and propose resolution of all the issues in accordance with the evidence.
We therefore do not address in these Coments each finding or conclusion of the Special Master; rather, we rely on our original proposed findings and reply findings. Certain significant findings, conclusions and recomendations of the Special Master, however, do warrant coments by the Staff, which we hereby provide.
II. COMMENTS ON THE SPECIAL MASTER'S FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATIONS A.
The Extent of Cheating 1.
The Staff addressed the extent of cheating in Staff Findings 11 9-77, 142-155, in Staff Reply to Comonwealth 112-21, in Staff Reply to Aamodts 11 11-12, and in Staff Reply to TMIA 1 3.
The Staff's position is that those proposed findings and reply findings are soundly supported by the evidence. Nothing in the Special Master's Report has caused the Staff to modify its position as reflected in those proposed and reply findings.
i l
-1/
NRC Staff's Proposed Findings of Fact and Conclusions of Law on Issues Raised in the Reopened Restart Proceeding, January 15, 1982 (StaffFindings).
i 2]
NRC Staff's Reply to TMIA's Proposed Findings of Fact and Conclusions i
of Law on Issues Raised in Reopened TMI-I Restart Proceeding, Janu-ary 22,1982 (Staff Reply t'o TMIA); NRC Staff's Reply to Comonwealth of Pennsylvania's Proposed Findings of Fact and Conclusions of Law on l
Issues Raised in Reopened Hearing on Operator Cheating, January 22, 1982 (Staff Reply to Comonwealth); NRC Staff's Reply to Aamodt Proposed Findings of Fact and Conclusions of Law on Issues Raised in Reopened i
TMI-1 Restart Proceeding, January 26,1982 (Staff Reply to Aamodts).
l l
- B.
Management's Involvement in Cheatin 1.
Mr. Ross 2.
By Memorandum and Order dated May 5,1982, the Licensing Board issued a " tentative final draft" of the portion of its forthcoming initial decision on operator cheating concerning the allegations that Licensee's Manager of Plant Operatiots at TMI-1, Mr. Michael Ross, improperly broadened the answer key to the NRC's April 1981 examination and intentionally kept the NRC proctor away frcm the examination room in order to aid the examinees in cheating. Th.e Licensing Board concluded, contrary to the conclusions of the Special Master, that Mr. Ross did not act in bad faith in proposing changes to the answer key and did not keep the NRC proctor out of the examination room to aid examinees in cheating.
As a result of finding all the charges againsa. Ms. Ross to be unfounded, the Licensing Board stated that it does not impute any misconduct to the Licensee with respect to the answer key episodes.
3.
The Licensing Board's tentative findings and conclusions concerning Mr. Ross are consistent with the Staff's proposed findings of fact on Mr. Ross.
See Staff Findings 11 19-27, 124-126. The Staff believes the Licensing Board's tentative findings and conclusions concerning Mr. Ross are well-reasoned and soundly based on the evidence, and we therefore urge the Licensing Board to adopt them as its decision on the allegations against Mr. Ross.
2.
The Definition of Management 4.
The Special Master concluded that there was no evidence that Licensee's " upper" management encouraged, condoned, participated in, or knew of any cheating at TMI-1. Report 11 136, 322.
Based on the
4_
evidence, the Staff agrees.
Staff Findi gs 11 122-127. However the Special Master also found and concluded that the middle and upper ranks of, Licensee's operations staff did cheat and that the overall integrity of the operations staff was shown to be inadequate.
Report 11 182-183, 325. These findings and conclusions, of course, follow from the Special Master's findings that Messrs. O, W,. G, H, U, GG, Husted, Shipman, VV, and Ross cheated.
Report 11 182-183, 325.
If these findings are accepted as a premise, it certainly follows that Licensee's operations staff management was involved in cheating. The Staff's position, however, is that the evidence does not establish cheating by Licensee's existing operations staff (See Sections II. A. and B. of these Staff Comments, supra) and that the premise is, therefore, false.
It follows that the basis for the Special Master's conclusion that the Licensee's operations staff management was involved in cheating disappears, and that the over-all integrity of the operations staff was not shown to be inadequate.E C.
The Licensee's Repanse to the Cheating 5.
The Special Master concluded that Licensee's response to the cheating was inadequate.
Report 11 332-335. The Staff disagrees for the reasons set forth in Staff Findings 11 103-121, 142-155, with one excep-tion. The Staff does agree with the Special Master that the Licensee's certification of Mr. VV to the NRC for his license renewal was improper.
Staff Findings 1 154. The Special Master also found that Licensee's letter to the NRC certifying Mr. VV for license r.enewal contained an
-3/
One possible exception, however, involves Licensee's certification of Mr. VV to the NRC for his license renewal.
See 1 5, infra.
incorrect statement in that it reported that VV scored 89.1% on an examination section when, in fact, that section had been prepared, in part, by Mr. O. Report 11 233-235. The Staff believes that this finding is based on the twidence and agrees that it was improper for the Licensee to so report Mr. VV's score.
6.
Apart from this one exception, an additional matter deserves comment. The Special Master concluded that Mr. John Wilson did not conduct a thorough or impartial investigation of the cheating on weekly quizzes and that his testimony on this subject was very poor.
Report 1 334. Furthermore, the Special Master found that Mr. Wilson knowingly submitted misleading testimony concerning G and H's answers to the quiz question c'i Bernoulli's equation. Report 1210. The Staff does not believe the evidence supports that serious finding. The Special Master's own Report (1 210) demonstrates that that " finding" is merely the Special Master's inference. The testimony found to be knowingly misleading is that "G and H told him [ Wilson] that they had memorized their uniquely si:ailar definition 'either from a common answer which they may have prepared in preparation for the quiz or from language placed on the blackboard by the instructor.'" Report 1210, quoting J. Wilson, ff.
Tr. 24,478, at 8.
To place this excerpt of testimony somewhat more in context, the entire paragraph of Mr. Wilson's prepared testimony on this point should be considered:
Finally, on October 29, 1981, Mr. Lloyd and I interviewed G and H separately relative to' the parallelisms noted in their non-Category T make-up quiz, Mr. T. Peters, local union president, was present at the request of the' individuals.
While we could not find any lesson material which was sup-portive of their responses, both G and H emphatically denied cheating or king aware that anyone might have copied from
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them. They did feel that their responses were items which they would have memorized, either from a common answer which they may have prepared in preparation for the quiz or from language placed on the blackboard by the instructor. They could not be certain, however, because the exam was taken
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nearly a year prior to the interview and was one of many exams given during the training sessions which they had attended during that period. Mr. Lloyd and I found no reason to disbelieve their denials.
J. Wilson, ff. Tr. 24,478, at 7-8.
Special Master Milhollin found that this testimony is " misleading" and was filed by John Wilson knowing that it was misleading. The Special Master based this finding on H's testimony at the hearing that he independently memorized his answer from the blackboard, while G testified at the hearing that he and H memorized their answers together from a book.
Report 1 210. Mr. Wilson's testimony was filed on November 3,1981 and Mr. Wilson testified on November 18, 1981.
But G didn't testify until December 3,1981, while H testified on December 4,1981, both after Mr. Wilson testified. Thus the Special Master concluded that Mr. Wilson's testimony was knowingly misleading based on the subsequent testimony of G and H.
There is n_oo evidence that G and H each reported to Mr. Wilson in his October 29, 1981 interview of them exactly the explanation offered at the hearing, although Special Master Milhollin stated they "must have" (Report 1210) and found Mr. Wilson guilty of submitting intentionally misleading testimony based on that supposition. Mr. Wilson's testimony that G and H "did feel that their responses were items which they would have memorized, either from a comon answer which they may have prepared in preparation for the quiz or from language placed on the blackboard by the instructor," does not " definitely" imply, as Special Master Milhollin stated, that "G and H told [Mr. Wilson] that either they both memorized i -
. the definition from the blackboard, E t$ey both memorized it from a common source in preparation for training week." Report 1 210.
In his I
next sentence, Mr. Wilson testified that they couldn t be certain because the examination was one of many and was taken nearly a year before the interview.
It is clear that Mr. Wilson was merely summarizing, in a collective fashion, the results of his interviews of G and H.
Mr. Wilson may not have been as precise as he s ould have been, but to conclude on this evidence that Mr. Wilson knowingly submitted misleading testimony is unfounded, particularly considering the seriousness of such a finding and its potential consequences for Mr. Wilson.
7.
In conclusion, the Staff believes the evidence supports a finding that Licensee's overall response to cheating was adequate (Staff Findings 11 103-121, 142-155) although the single instance in which Licensee certified VV to the NRC was clearly an inappropriate action by Licensee.
D.
The Licensee's Training and Testing Program 8.
After the accident at TMI-2, the Comission, by Order of August 9, 1979, directed that all operators be retrained in the areas of natural circulation, small break loss of coolant accidents, and the iMI-2 accident.
The Commission also ordered the Licensee to " conduct a 100 percent reexami-nation of all operators in these areas." Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1), CLI 79-8, 10 NRC 141, 144 (1979).
S.
The adequacy of Licensee's training and testing program was the subjectoftwocontentionsbeforItheLicensingBoardinthiscase. See Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1),
. LBP-81-32, 14 NRC 381 (1981) (Management P.I.D.), 1 165. After extensive testimony at the evidentiary hearing before the Licensing Board, see Ma,nagement P.I.D. 11 163-276, the Board found that Licensee's program satisfied the requirements for retraining and retesting which the Commission had set forth in its Order. M.at264.
At the same time, the Board " retain [ed] jurisdication jo consider further the effect of the investigationofcheatingon[its] decision...." M.at145.
If the Licensing Board were to adopt the section of the Special Master's Report relating to training and testing (Report 11 238-251,336), its Management P.I.D. would have to be modified.
- 10. Af ter hearing evidence on the issues in the reopened proceeding, the Special Master has concluded that Licensee's training program was not an adequate response to the Comission's Order of August 9,1979.
Report 11 251, 336. The Special Master found, in sum, that Licensee's training program was "poorly administered,... weak in content and ineffective in its method of instruction." Report 1 251.
- 11. The parties did not submit proposed findings on Licensee's training and testing program since it was not an issue in the reopened proceeding.
For the same reason, neither Licensee nor any other party presented testimony on this issue at the reopened proceeding.
See the Licensing Board's Memorandum and Order on October 2,1981 Conference of the Parties Related to Reopened Proceeding, dated October 14, 1981.
- 12. On the basis of the extensive record developed on training, the Licensing Board found that Licen,see has in place at TMI-1 a comprehensive and acceptable training program. Management P.I.D. 1 276. The program has been reviewed by the NRC Staff and by highly qualified independent i
. consultants.
Id.
The Staff will continue to audit implementation of the program to ensure that the program as described will be properly iqplemented and that any weaknesses noted will be corrected.
In addi-tion, it should be noted, as the Licensing Board did in its Management P.I.D. (1 276), that prior to obtaining NRC licenses to operate the plant all operators must have successfully completed oral and written NRC-administered examinations, thereby demonstrating their competence.O
- 13. The Staff agrees that the administrative weaknesses noted in the Licensee's training program should be corrected (i.e., "very loose" administration of its weekly quizzes (Report 1 241), uneven proctoring, cooperation on quizzes (Id.)).
Staff understands that Licensee has adopted new procedures for testing.
See Report 1 250. The Staff agrees with the Special Master's finding that if these new procedures are followed the administration of testing at TMI-1 should improve.
_I d.
E.
The Licensee's System for Certifying Candidates
- 14. The Staff's position on Licensee's criteria and procedures for certification is set forth in 11 226-230 of the Staff Findings. The Staff believes that Licensee's criteria and procedures for certification are now sufficient. The Special Master concluded that, while Licensee should not have certified 0 and W, and the data from the weekly training program was unreliable, the Licensee's certification program appears to have been otherwise adequate.
Report 1 259. The Special
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The Licensing Board specifically found that successful completion of the NRC examinations, coupled with training sufficient to allow success on those examinations, was indicative of a capable licensed operator. Management P.I.D. 1 272.
. Master also noted that Mr. Hukill testif ed that Licensee intended to formalize its certification process by establishing a written certifi-4 cation procedure, and that this would be done before the next group of candidates was certified. Report 1 258.
15.
It is important to note that the Special Master did not find that any inadequacies in the certification process were due to bad faith on the part of Licensee. Therefore, any perceived deficiencies do not reflect on the central issue of management integrity.
F.
The NRC Examination 1.
Proctoring and Grading
- 16. The Special Master concluded that with respect to the NRC's April 1981 examinations at TMI-1, the Staff was lax and its procedures were inadequate. Report 1 339. The Staff does not challenge that con-clusion. The important conclusion of the Special Master, however, which is supported by uncontroverted evidence (Staff Findings 11 171-176, 193-203), is that the Staff's new procedures are adequate and were used successfully during the NRC examinations at TMI-1 in October 1981.
Report 11 268, 339. Thus, all the TMI-1 operators were re-examined in October 1981 by the NRC according to new procedures which were used successfully and which were found to be effective in preventing cheating.
Report 1 339.
2.
Content of the Examination
- 17. The Special Master concluded that the content of the NRC's April 1981 examination caused the examiner to rely too heavily on the Licensee for the correct answers, encouraged memorization as a method for preparing
for it, and undermined the examination's credibility in the eyes of the candidate. Report 11 285, 340. He also recommended that the Commission take steps to assure that NRC examinations test the type of knowledge which reactor operators should have, do not rely so heavily on licensees for answers, and do not permit memorization to be the primary means of prepara-tion. Report 1 340. The Staff has several comments on these conclusions.
18.
The Special Master himself recognized that the content per jLe of NRC examinations was not an issue in this proceeding.
Report 1 269. This is in accordance with the explicit ruling of the Licensing Board:
The Board will not permit a relitigation as to whether the substance of the NRC operatcrs' license examinations are technically adequate to assure that operators are qualified to operate the plant without endangering the health and safety of the public.
Memorandum and Order on October 2,1981 Conference of the Parties Relative to Reopened Proceeding, October 14, 1981, at 5.
The Staff therefore justifiably did not present evidence, as it could have done, ontheadequacyofthesubstantivecontentofNRCexaminations.E It 5/
As set forth above, the Staff did not provide any testimony on this matter and does not now seek to rely on any extra-record material to express support or opposition to these findings. However, to assure th6t the Board and the parties are kept apprised of the Staff's continuing activity in this area, the Staff states the following:
Additional analysis is being done by the Staff to further ensure, and maintain continual assurance, that the content of the NRC examination is valid. However, the studies that are underway are considering the entire examination process, not just the written examination in isolation. Therefore, the Staff has begun efforts to validate the examination-content and process. These studies include a formal content analysis of the written examination ques-tions to identify required, cognitive functions and to classify
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questions by function.
The* staff is also considering a computer-assisted, automated system for written examination preparation.
This system will allow the written exaHr,ation to include a mix of questions that test for the skills and knowledge that the validity studies show should be included in the written portion of the examination. Other skills and knowledge will be covered in the operational portions, as they are currently.
. thus was improper for the Special Master to conclude that the substantive contentoftheNRCApril1981examinationwasinadequate.O MostsignificantastotheSpecialMaster'Ifindingsonthe 19.
content of the NRC's examination is his failure to account for the uncontradicted evidence concerning the NRC's oral examinations.1/ Staff Findings 11 187-192.
Each candidate, for an NRC operator license must take and pass both a written and oral examination before being issued a license; both are relied upon equally by the Staff in granting a license.
Staff findings 1 189.
- 20. The Special Master criticized the NRC's written examination because the " questions did not ask the operator to solve a structured problem --which is a higher form of knowledge -- or to react to a new situation, which is a still higher form of knowledge." Report 1 340.
Yet the oral examination, which candidates must pass and which was not discussed by the Special Master, specifically tests for such higher forms of knowledge by testing operators' ability to react to emergency conditions, or transients, hypothesized by the examiner.
Staff Findings 1 189. The Special Master apparently failed to consider the content of
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The Staff agrees with the Special Master that it was legitimate to consider the content of the examinations "for the purpose of deciding whether the questions were amenable to cheating, rote memorization, or other devices which could defeat the examination's purpose" (Report 1 269), or to determine whether the answer key was improperly broadened and and to gauge the operators' attitudes toward the examination (Id). However, the Staff believes the Special Master went beyoiid these legitimate purposes.
Z/
Although the Special Master.,briefly described the NRC's oral exam-ination in his Report (Report 1 280), he appears to have totally ignored it in deciding on the adequacy of the content of the NRC examination.
the oral examination in determining the adequacy of the content of the NRC examination notwithstanding hic personal examination of Staff Witness Bqger on the " difference in the purpose of the written exam as compared to the oral test" (Tr. 25,638 (Milhollin and specific questions of Mr. Boger concerning the oral examination's coverage of transients, which Mr. Boger answered at length (Tr. 25,639-42(Milhollin,Boger)). Further-more, in response to questions from the Special Master, Mr. Boger testi-fied that the written examination also includes diagnostic questions on transients. Tr. 25,640-41 (Milhollin, Boger). Mr. Boger even identified for the Special Master the written examination questions which covered transients. Tr. 25,642-45. It was error for the Special Master to ignore this uncontradicted evidence in concluding that the content of the NRC's April 1981 examination was inadequate. If the evidence is considered in its entirety, then the Special Master's findings and conclusions on the adequacy of NRC examinations are unsupported and inconsistent with the record.
- 21. Finally, it should be noted that the adequacy of NRC examinations was specifically litigated in the management aspect of the TMI-l Restart proceeding.
See Management P.I.D., pp. 465-79. The Licensing Board considered the scope of the NRC examinations, the existence of time limits, the oral examinations, and the grading criteria. Management P.I.D. 1 268. The Licensing Board concluded: We reject the Aamodt attack on the adequacy of NRC's license examinations. In so doing, we take into account not only Mr. Boger's testipony but also the opinions of experts such as Dr. Gardner (who reviewed with favor Mr. Kelly's examinations which were fashioned aft;r NRC examinations), who unanimously agreed that successful completion of such examinations coupled with training sufficient to allow
I i . success on those examinations as indicative of a capable licensed operator. Thus,' hen the adequacy of Management P.I.D. 1 272 (citations omitted). w th'e NRC examination was an issue, and when all parties had a fair opportunity to address that issue, it was found by the Licensing Board to be adequate. 22. In contrast, the Special M ster four.d the NRC April examination _/ 8 to be inadequate without affording the parties notice that the substantive content of the examination was an issue he would decide and without giving the parties an opportunity to addres's that issue with evidence, which the Staff could have done. For that reason, as well as the others noted immediately above, the Staff submits that the Special Master's findings and conclusions on the adequacy of the substantive content of the NRC examination are not supported by the record in this proceeding. G. The NRC Staff's Response to the Cheating
- 23. The Staff's position on the adequacy of its investigation into cheating is set forth at 11 78-102 of the Staff Findings.
In short, the Staff believes that its investigation of, and response to, the cheating incident and rumors of cheating on the April 1981 NRC examinations was fully adequate. The Special Master found the Staff's investigation -8/ The NRC Staff voided the April examination and required all TMI-1 operators to successfully complete both a new written and a new oral NRC operator license eJamination before being permitted to maintain their operator licenses for TMI-1. ' Order Relative to the Submission of Views on the Investigation of Cheating, August 20, 1981, at 2.
adequate with respect to some instances of cheating or rumors of cheating, but inadequate with respect to other instances where the s Specici Master found that cheating had occurred. Report 1 341.
- 24. The Special Master's conclusions with respect to the NRC investigation are influenced by his belief that he has substantiated instances of cheating that were not pubstantiated by the Staff's investi-gation.
It is the Staff's position that, while instances of cheating may have occurred that were not proven by the Staff, such instances have not been established by evidence elicited at the hearing on cheating. As set forth in the Staff Findings, there were several occasions where the evi-dence, fell short of the degree of certainty required before a finding of cheating prudently could be made. Nothing in the Special Master's Report has caused the Staff to change its position either on the adequacy of its own investigation or the conclusions drawn therefrom. Nor does the Staff agree with the Special Master that the hearing on cheating has substantiated additional instances of cheating by operators.
- 25. The Special Master found the Staff did a thorough and effective job of investigating 0 and W. Report 11 289, 298, 341. The Staff's investigation of the telephone call to KK was also found to be thorough.
Report 11 292, 298, 341. However, the Special Master criticised the Staff because a management representative was present during the Staff's interviews of operators during the first investigation. Report 11 291, 298, 341. Specifically, he felt.that management presence " inhibited the free flow of information." Report 1 291. That finding, however, s incompletely reflects the evidence. The Special Master also ignored testimony by Mr. Ward that the information 0IE obtained in the first investigation was sufficient to resolve the issues it was investigating. See Staff Findings 1 137. Finally, the Special Master's criticism of the Staff in this regard is insignificant in light of the Special Master's overall conclusion that 0IE's investigation of the 0 and W incident was " thorough and effective". Report 1 289.
- 26. The Special Master also.found that Management's presence prevented
[ ~ the Staff from receiving information,i.n confidence, and that these disad-vantages should have convinced the Staff to exclude management from the interviews. Report i 298. Once again, the Special Master ignored perti-nent evidence which puts the issue of management presence in its proper light. Licensee management took it upon itself to advise interviewees of their "right" to have a management official present at the interview. Staff Findings 1 135. As a result, each of the persons so advised by the Licensee chose to have a management official present. Id. After discussing the issue of management presence with their supervisor, the investigators were instructed to proceed with the interviews under those conditions because of the need to obtain the information in a timely fashion in light of its obvious interest to the Licensing Board. If, Tr. 25,399 (Ward). As Mr. Ward explained at the hearing, the only choices which ole considered available to it at the time were to conduct the interviews with a management representative present, or not to conduct them at all. Tr. 25,428 (Ward). It should also be noted that at that time there was 4
i no allegation that management was involved in any cheating. Tr. 25,429-30 (Ward). Thus, the Special Master's findings that it," prevented the investigators from receiving information of management involvement on a confidential basis" is not a valid criticism of the first investigation, where management participation was not in issue.
- 27. With regard to the Staff's, investigation of the various allegations against Mr. U, the Special Master found that the investigators did not follow up in "very much detail" the rumors about U being stationed s
in the hall, or follow up on the rumors about U writing on his hand or using " crib" sheets. Report 1 299. However, the Special Master also noted that, given the limits on the Staff's resources, these steps may N not have seemed worthwhile. Report 1299.E It is puzzling that the Special Master concluded as he did on the Staff's follow-up on the rumors about U being stationed in the hall, in light of his finding that the record is " insufficient to show what steps the Staff took to investigate [the rumors]." Report 1 293.
- 28. As for the Shipman incident, the Staff takes issue with the Special Master's finding that the Staff was " clearly wrong" when it decided not to ask the eight people in the other examination room whether they had received an answer from Mr. Shipman. Report 1 301. 0IE had in fact already interviewed five of the eight operators in that room, and
-9/ The Special Master apparently did not take into account the fact that after the first investii;ation uncovered cheating, the Staff determined that the April eyamiration results would be voided and all operators would be rete &ted. Thus, at the time of the second and third investigations by 0IE, the resources committed to investi-gating cheaters on the April exar.ination would have been influenced by the fact that all operators would be required to pass another examination before being licensed to operate the plant.
each of them had denied any knowledge of cheating. Tr. 25,364 (Ward). There was no significant likelihood that any of those operators would sQbsequently change their answers even if the questioning were speci-fically focused on the Shipman incident. In addition, Mr. Ward testified that it is not a general investigatory practice to interview every individual who might possibly have knowledge of an incident in question, even in the investigation of criminal matters, including homicides. Staff Findings 1 95.
- 29. The Spccial Master also criticized the fact that the auestions asked were general in nature and therefore susceptible to misinterpreta-tion and vagueness.
Report 1 296. The Staff submits that there is ample justification in an investigation of this type for keeping the questions general in nature. Mr. Ward testified that there were two reasons for this: the investigators did not wish to indicate during the interviews who their potential suspects were, nor did they wish to pass on unsub-stantiated derogatory information about people that could damage their reputations. Staff Findings 1 96.
- 30. The Special Master was most critical about the Staff's invectigation of the alleged Husted-P incident. Specifically, the Special Master found that it is " simply not acceptable to consider Mr. Husted's solicitation of P" as other than cheating. Report 1 300.
To conclude as the Special Master has done is to ignore record evidence. For example, the Special Master a'ssumed -- without any discussion or analysis -- that the comment by Eusted constituted a solicitation, while ignoring the completely benign inference which could also be drawn from the comment. See Staff Findings 1 52.
- 31. Mr. Husted's comment, it shoulcl be remembered, was something along the line of "What in the hell does this mean." As Mr. Ward testi-fied,"[w]ehadhere,itwouldseemtous,atbestanattemptedactof cheating." Tr. 25,320 (Ward) (emphasis added). The Special Master ignored the possibility of an innocent interpretation of the remark, which Staff is still unwilling to do.
- 32. The Staff is faulted for not directly confronting Mr. Husted with Mr. P's allegation.
Report 1 294 Hc, wever, the Staff had already twice interviewed Mr. Husted about cheating matters, and he had already denied any participation. In addition, given the general attitude of non-cooperation he exhibited, the Staff concluded it would ba unproductive to interview him again. Tr. 25,317-320; Tr. 25,311 (Ward).
- 33. The Special Master also faults the Staff for its review of the Trunk Reports and for failing to make an independent analysis of Mr. John Wilson's investigation of cheating on Licensee's weekly quizzes. Report 11297,302.E The Special Master stated erroneously that the Staf 's response to the Trunk Reports was not to read them.
Report 1 302. No reference is cited for this finding. Indeed, the evidence in the record shows that OIE did review the Trunk Reports. Staff Findings 1 74. While OIE's chief investigator, Mr. Ward, testified that he personally had nct -10/ The Special Master cited Mr. Ward's " admission" that 0IE had not made an independent comparison of the parallel answers given by G and H. Report 1 297. To the extent that that term gives rise to an implication that Mr. Ward' either (a) ori made such an independent comparison or (b) ginally claimed to have attempted to give the impression that such a comparison was conducted, the Staff takes issue with the Special Master's characterization of Mr. Ward's testimony.
seen one of the Trunk Reports before he testified (Tr. 25,336 (Ward)), there is simply no basis to conclude from that that 90 one in OIE had read aqy of the Trunk Reports.
- 34. The Special Master rejected the Staff's justification for not further pursuing the evidence in the Trunk Reports, Report 1 302. The Staff maintains its position that " cyst-benefit" considerations and remoteness in time cf the training quizzes from the NRC examination are valid and proper reasons upon which to base its decisions on the proper allocation of its finite resources.
III. THE EFFECT OF THE SPECIAL MASTER'S FINDINGS AND CONCLUSIONS ON THE LICENSING BOARD'S MANAGEMENT PARTIAL INITIAL DECISION
- 35. The broad issue in this reopened proceeding is the effect of the findings and conclusions on cheating on the Licensing Board's partial initial decision on management issues. E Report 11 3, 343. The Special Master offered no overall conclusion on this broad issue, stating that such a determination was the responsibility of the Licensing Board.
Report 1 343. The Special Master did recognize, however, that some of his conclusions had a " great potential for determining the ultimate issues before the Licensing Board." Id.
- 36. The Staff believes that if the Licensing Board were to adopt all of the findings, conclusions and recommendations of the Special Master, then certain of the Licensing Board's prior findings and conclusionswouldhavetobemogfiedandtherestartofTMI-1likely 1_lf Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), LBP-81-32, 14 NRC 381 (1981).
could not be authorized with the Licensee's existing operations staff. This follows from such conclusions by the Special Master as: (1) the overall level of integrity of the operations staff is inadequate (Report 1 325); and (2) the operations staff management was involved in cheating, as were the two individuals, Messrs. Ross and VV, who functioned as the links between upper management and t,he operations staff (Report 1 183). In addition, of course, Messrs. G, H and Shipman could not be used by Licensee to operate TMI-1, so these individuals could not be considered in determining whether the Licensing Board's shift staffing conditions for restart were satisfied. See Management P.I.D. 1 583(9).
- 37. Since the Special Master found the Licensee's training program to be poorly administered, weak in content and ineffective in its method of instruction (Report 1251), the Licensiiig Board's prior conclusion that
" Licensee has in place at TMI-1 a comprehensive and acceptable training program" (Management P.I.D. 1 276) would have to be modified. 38. Finally, since the Special Master found the content of the NRC's April 1981 examination to be inadequate (Report 1 340), the Licensing Board's prior findings to the contrary (Management P.I.D.1272) also would have to be modified.
- 39. The above effects on the Licensing Board's Management P.I.D.
result only if the Licensing Board adopts the key findings and conclusions of the Special Master noted above. As the Staff has commented, however, those key findings and conclusions are, in the Staff's opinion, not soundly based on the evidence. If the Staff's proposed findings and f conclusions are accepted, then there is no cause to disturb or modify in any way the Licensing Board's previous findings and conclusions in its
. Management P.I.D. or its December 14, 1981 P.I.D. except to remove the limitation of operation to five percent of design power and instead to recommend restart and operation up to design power. See Staff Findings 1 231. IV. CONCLUSION 40. For the reasons set forth above, the Staff believes that many of the Special Master's findings, conclusions and recomendations are not soundly based on the evidence and, therefore, should not be adopted by the Licensing Board. If they are adopted, then certain of the Licensing Board's prior findings and conclusions would have to be modified, and the restart of TMI-1 likely could not be authorized with the Licensee's existing operations staff. If, on the other hand, the Staff's proposed findings and conclusions are accepted, then the Licensing Board's prior findings and conclusions would not have to be modified except to permit restart at up to design power. The Staff respectfully requests the Licensing Board to reject the Special Master's findings, conclusions and recommendations in accordance with these comments. Respectfully submitted, / 10ack R. Goldberg Counsel for NRC Staff %M l ' Mary - WagnerU Couns l for NRC Staff Dated at Bethesda, Maryland this 21st day of May, 1982
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) METROPOLITAN EDIS0N COMPANY, ET AL. Docket No. 50-289 ), (Restart) (Three Mile Island, Unit 1) ) CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S COMMENTS ON THE REPORT OF THE SPECIAL MASTER", dated May 21, 1982 in the above-captioned proceeding have been served on the following by deposit in the United States mail or as or as indicated by a single asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, or as indicated by a double asterisk by Federal Express this 21st day of May, 1982 or as indicated by a triple asterisk by hand delivery on May 24, 1982. Dr. John H. Buck
- Dr. Linda W. Little Atomic Safety & Licensing Appeal Administrative Judge Board Panel 5000 Hermitage Drive U.S. Nuclear Regulatory Commission Raleigh, North Carolina 27612 Washington, DC 20555
- George F. Trowbridge, Esq.
- Dr. Linda W. Little Atomic Safety & Licensing Appeal Administrative Judge Board Panel 5000 Hermitage Drive U.S. Nuclear Regulatory Commission Raleigh, North Carolina 27612 Washington, DC 20555
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505 Executive House Ivan W. Smith P. O. Box 2357 Administrative Judge Harrisburg, PA 17120 Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Comission Honorable Mark Cohen Washington, DC 20555 512 D-3 Main Capital Building Harrisburg, PA 17120
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. Mr. Marvin I. Lewis Willian S. Jordan, III, Esq. 6504 Bradford Terrace Harmon & Weiss Philadelphia, PA 19149 1725 I Street, NW Suite 506 Mr. C. W. Smyth, Supervisor Washington, DC 20006 ~ Licensing TMI-1 Three Mile Island Nuclear Station John Levin, Esq. P. O. Box 480 Pennsylvania Public Utilities Comm. Middletown, PA 17057 Box 3265 Harrisburg, PA 17120 Ms. Jane Lee R.D. 3; Box 3521 Jordan D. Cunningham, Esq. Etters, PA 17319 Fox, Farr and Cunningham 2320 North 2nd Street Walter W. Cohen, Consumer Advocate Harrisburg, PA 17110 Department of Justice Strawberry Square, 14th Floor
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- Secretary U.S. Nuclear Regulatory Commission ATTN: Chief, Docketing & Service Branch Washington, DC 20555
- kr. Henry D. Hukill Vice President GPU Nuclear Corporation Post Office Box 480 Middletown, PA 17057
- Michael McBride, Esq.
- kr. Henry D. Hukill Vice President GPU Nuclear Corporation Post Office Box 480 Middletown, PA 17057
LeBoeuf, Lamb, Leiby & McRae Suite 1100 1333 New Hampshire Avenue, NW Washington, DC 20036
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4 Smith & Smith, P.L. Riverside Law Center 2931 N. Front Street Harrisburg, PA 17110
- John Clewett, Esq.
The Christic Institute 1325 North Capitol Street Washington, D. C. 20002 bD / k(R. Goldberg ounsel for NRC Staff ~ 3 ._..-_m.___ . - -.... -.}}