ML20053A557
| ML20053A557 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/18/1982 |
| From: | Cole D AFFILIATION NOT ASSIGNED, METROPOLITAN EDISON CO. |
| To: | |
| References | |
| NUDOCS 8205260221 | |
| Download: ML20053A557 (20) | |
Text
N C U;, t g -
a q UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF DOCKET NO. 50-289 METROPOLITAN EDISON COMPANY (nESTART)
(Three Mile Island Nuclear Station, Unit No. 1)
(Reopened Proceeding) i COMMENTS OF ONE OF THREE INDIVIDUALS TO REPORT OF THE SPECIAL MASTER May 17, 1982 5
1820 5 2 0 0 e2 01 m
y
y I
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF DOCKET NO. 50-289 METROPOLITAN EDISON COMPANY (RESTART)
(Three Mile Island Nuclear Station, Unit No. 1)
(Reopened Proceeding)
COMMENTS OF ONE OF THREE INDIVIDUALS TO REPORT OF THE SPECIAL MASTER May 17, 1982 I.
Background
As a result of the accident which occurred at Three Mile Island on March 28, 1979, to Unit 2, questions have arisen as to whether the Licensee (General Public Utilities Corporation) should be permitted to operate the undamaged Unit 1, which had voluntarily been shut down by the Licensee.
In this regard, public hearings were held before the Atomic Safety & Licensing Board on the issue of restart.
The results of these hearings were contained in a Partial Initial Decision of August 27, 1981.
t
, _. ~ _. -
y At about the same time the Partial Initial Decision was published, the Licensing Board became aware of cheating incidents on licensing examinations conducted April 23 and 24, 1981, at Three Mile Island.
In response to these incidents, the Licensing Board determined that the proceedings to determine whether the Licensee should be permitted to restart Unit 1 should be reopened to as-certain what effect the incidents might have on the Partial Initial Decision of the Licensing Board.
In addition to ordering the re-opening of the proceedings, the Licensing Board appointed Gary L.
Milhollin Special Master to conduct the reopened proceedings pur-suant to 10 C.F.R., Section 2.722.
Discovery and testimony in the reopened proceedings oc-curred between October 2, 1981, and December 10, 1981.
A report on the reopened proceedings was filed by the Special Master on April 28, 1982.
Parties to the proceedings were requested to make comments on the report.
By Memorandum and Order of the Licensing Board, dated May 5, 1982, Individuals 0, W and VV were given standing to comment on the Special Master's Report.
The comments that follow concern only those portions of the Special Master's Report dealing with Findings of Fact or Conclusions and Recommendations as they relate to Individual W.
~
II.
pose of Reopened Proceedings and Duty of Special Master afore making comment on the Report of the Special Master, it ctant to remember the purpose of the reopened proceed-1-
the issues to have been covered in the prcceedings, and the duty of the Special Master in the proceedings.
Against such a backdrop, one can more effectively evaluate the Report of the Special Master and make comments thereon.
A.
Purpose of Reopened Proceedings and Issues to be Covered in the Proceedings Because of the cheating incidents which came to light in August of 1981, it was determined by the Licensing Board, by Order of September 14, 1981, that the TMI-1 restart proceedings should be reopened.
The initial basis upon which the proceedings were to be reopened was to evaluate the impact the cheating might have on the conclusions contained in the Partial Initial Decision.
In addition, the reopened proceed-ings were to consider the adequacy of operator testing and licensing.
A narrowing of the issues to be focused on in the reopened proceedings occurred as a result of a prehearing conference held on October 2-3, 1981.
In a Licensing Board Memorandum and Order dated October 14, 1981, it was ruled that the reopened proceeding would consider the following issues: '
sr
)
i l
The Broad Issue The broad issue to be heard in the reopened proceed-ing is the effect of the information on cheating in the NRC April examination on the management issues considered or left open in the Partial Initial Decision, recognizing that, depend-ing on the facts, the possible nexus of the cheating incident in the NRC examination goes beyond the cheating by two par-ticular individuals, and may involve the issues of Licensee's management integrity, the quality of its operating personnel, its ability to staff the facility adequately, its training and testing program, and the NRC process' by which the oper-ators would be tested and licensed.
Particular Issues 1.
The extent of cheating by TMI-1 operator license candidates on the NRC license examinations in April 1981, and on any other Licensee-or NRC-adminis-tered examinations, including, but not limited to, the following:
the Kelly examinations (including Category T) in April 1980; Category T make-up examinations subse-quently administered by the company; the ATTS mock exam-inations in early April 1981; and such other examinations as the Special Master shall deem relevant.
These latter
m shall include any other Licensee-adminsitered qualifi-cation or mock exam or NRC-administered exam since the accident at TMI-2.
2.
The adequacy of the Staff's investigation of, and NRC response to, the cheating incident and rumors of cheating in the April 1981 NRC examinations.
3.
The adequacy of Licensee's investigation of, and Licensee's response to, cheating or possible cheating in the examinations listed in Issue 1 above.
4.
[ Proposed Issue 4 was combined with Issue 3.]
5.
The extent of Licensee management know-ledge of, encouragement of, negligent failure to prevent, and/or involvement in, cheating in the above-mentioned NRC and Licensee exminations.
6.
The existence and extent of Licensee manage-ment involvement in cheating as alleged by the Aamodts in Paragraph 7 in response to the Board's Order of Aug-ust 20, 1981.
7.
The existence and extent of Licensee manage-ment constraints on the NRC investigation of cheating and rumors of cheating in the NRC April 1981 examina-tions.
y 8.
The adequacy of Licensee management re-sponse to the incident in July 1979, referred to in the OIE investigation report and involving one of the two operators terminated as a result of cheating on the NRC April 1981 examinations.
9.
The adequacy of Licensee's plans for im-proving the administration of future Licensee qualifi-cation examinations for licensed operators and candidates for operator licenses, including the need for independent administration and grading of such examinations.
10.
The adequacy of the administration of NRC licensing examinations for TMI-l personnel, including proctoring, grading, and safeguarding the integrity of examination materials; the adequacy of the Staff's review of the administration of Licensee's Category T examin-ations; and the adequacy of the Staff's plan for retest-ing operators and monitoring its NRC examinations to assure proper adherence to NRC testing requirements in order to assure that the purposes of the NRC examina-tions, because of the nature of the questions, cannot be defee'ed by cheating, the use of crib sheets, undue coaching or other evasive devices. '
w 11.
The potential impact of NRC examinations, including retests, the operator terminations on the ade-quacy of staffing of TMI-1 operations.
12.
The sufficiency of management criteria and procedures for certification of operator license candidates to the NRC with respect to tne integrity of such candidates and the sufficiency of the procedures with respect to the competence of such candidates.
In summary, then, the reopened proceedings were to cover not only the effect the cheating incidents might have on the Partial Initial Decision, but also the adequacy of operator testing and licensing, with the overriding issue being whether, as a result of the inquiry in the reopened proceedings, the Licensee should be permitted to restart TMI-1.
B.
Du*.y of the Special Master The power of the Licensing Board to appoint a special Master is found in 10 C.F.R.,
Section 2.722.
Section 2.722 (a)
(2) provides in pertinent part:
(a)
Such special assistants may function as:
(2)
Upon consent of all parties, Special Masters to hear evidentiary presentations by the parties on specific technical matters, and, upon completion of the presenta-tion of evidence, to prepare a report that would become
y part of the record.
Special Masters may rule on eviden-tiary issues brought before them, Special Masters' reports are advisory only; the presiding officer shall retain final authority ' th respect to the issues heard by the Special Master From Section 2.722, it is clear that Special Masters' duties are threefold:
(1) to hear evidentiary presentations; (2) to :ule on evidentiary issues brought before them; and (3) to prepare a report as part of the record.
Though not set forth in Section 2.722, the Special Master clearly also has two important other duties.
The first is to conduct any evi-dentiary hearings, and to consider any evidence presented, being ever mindful of the purpose and reason for his appoint-ment as Special Master as ordered by the Licensing Board.
The second, but equally important unwritten, duty of the Special Master is to make Findings of Fact, Conclusions of Law and Recommendations in his Report, based solely on the evidence presented and in view of the issues to be covered in any hearings.
He is clearly not expected to interject in his Report personal feelings or observations either un-supported by the evidence presented or concerning matters beyond the scope of the issue to be heard by him.,
m III. Report of the Special Master and his Recommendations Concern-ing Individual W Special Master Milhollin in his report of April 28, 1982, makes the following Findings of Fact and Recommendations concerning Individual W:
1.
W showed a lack of respect for the NRC examination (SMR Paragraph 19);
2.
W engaged in a pattern of cheating over a period of time (SMR Paragraph 305);
3.
W lied to NRC investigators during their first two interviews (SMR Paragraph 305);
4.
When testifying under oath in this proceeding, W was not forthright (SMR Paragraph 305);
5.
W was fired from his position when his guilt was established (SMR Paragraph 306);
6.
W appears to have violated two sections of United States Criminal Code, 18 U.S.C. Section 1001 and 18 U.S.C. Section 371 (SMR Paragraph 307); and 7.
Because of the unrepentant posture of W, his dis-respectful attitude toward the NRC examination, the other acts of cheating or attempted cheating which occurred during the exam-ination, and the threat to the public hrdith and safety posed by
y unqualified operators and supervisors, the NRC should recommend criminal prosecution of W (SMR Paragraph 310).
IV.
Comments on the Report of the Special Master as it Relates to Individual W Individual W takes issue with several of the Conclusions and Recommendations reached by the Special Master in his Report.
The first Conclusion of the Special Master at issue is contained in Paragraph 305 of the Report.
The Special Master concludes in this paragraph that W was not forthright under oath.
This is sim-ply not the case.
Prior to his testimony before the Special Master, W had told everything he knew about the cheating incidients to NRC investigators.
As a result of his involvement in the incidents, W had already lost his position with the Licensee.
And W had agreed to testify voluntarily before the Special Master in return for confidentiality.
W simply had no reason not to testify truth-fully.
He had nothing to gain by not being forthright.
The Con-clusion by the Special Master that W was not forthright is neither logical nor true; rather, it must be viewed as speculation on the part of the Special Master.
The second Conclusion with which W would take issue is found in Paragraph 306 of the Special Master's Report.
It is stated
~
in this paragraph that W was fired from nis position with the Li-censee.
This is simply not true.
W was not fired from his posi-tion.
Rather, he voluntarily resigned his position with the Li-censee.
The third Conclusion at issue here is contained in Para-graphs 307-309 of the Report.
In these paragraphs, the Special Master initially concludes that W seems to have violated two Sec-tions of the Urited States Criminal Code.
He then proceeds at length in succeeding paragraphs to prove that, in fact, these Sec-tions of the Criminal Code are applicable to W; and that, in fact, W has violated these Sections.
This Conclusion clearly goes beyond the scope of the reopened proceedings as set forth in Section II of these Comments.
This Conclusion can be seen at best as an at-tempt to make an example of W to other operators, or at worst the scapegoat for the Licensee's problems.
The purpose of the reopened proceeedings was to determine what effect the cheating incidents might have on the decision to restart TMI-1.
The proceedings were not reopened to consider the criminal guilt or innocence of anyone.
W testified voluntarily and forthrightly to the Special Master in an attempt to help create a complete record on which to base a decision to restart.
W did not have to testify.
W's guilt or innocence was never an issue in these proceedings and was not the '
O
y purpose for reopening the proceedings.
It can only be hoped that the Licensing Board will keep in mind the stated purpose of the reopened proceedings; and, therefore, will ignore a Conclusion of the Special Master which is not at issue in the proceedings.
The final Conclusion reached by the Special Master with which W would take issue is found in Paragraph 310.
In that para-graph, the Special Master recommends criminal prosecution of W.
The question that arises immediately from such a Recommendation is from what authority does the Special Master draw to make such a Recommendation?
Under the provisions of 10 C.F.R.,
Section 2.722, the Special Master is authorized to hear evidentiary presentations, to rule on evidentiary issues brought before him, and to prepare a Report as part of the record.
A Special Master is not invested with the authority to recommend criminal sanctions against anyone.
The NRC in August 1981 had the same information about W's involve-ment in the cheating as the Special Master.
Yet the NRC has not recommended prosecution.
Nor should a Special Master, since he is not vested with the authority to determine if there has been criminal conduct on the part of anyone; nor does he have the power to recommend criminal sanctions against anyone, i
The effect of the Special Master's action in recommend-ing criminal sactions, despite a lack of stated authority to do.
1
m so, cannot be underestimated.
Out of his Report of 196 pages, containing 343 paragraphs, the Press has seized upon the Recom-mendations concerning W.
See attached as EXHIBIT "A" a copy of Harrisburg Patriot News article.
Whether the Special Master knew that his Recommendations concerning W could have such an impact is irrelevant.
The fact is that, despite all his other Recommend-ations, the focus has been placed on the Recommendations relating to W.
W has already paid dearly for his involvement in the cheating incidents.
Had W known that the Special Master was even contemplating the Recommendations found in his Report, he might not have testified before the Special Master.
What did his test-mony gain him, when now he might have to defend against criminal charges?
It can only be hoped that the Licensing Board will view the Recommendations as beyond the scope of the authority granted to a Special Master.
CONCLUSION It is unfortunate that the cheating incidents occurred on NRC examinations given at TMI. Restart proceedings had to be reopened 9 l
m to determine the effect of the cheating on the potenttal restart.
It is even more unfortunate, however, that the Special Master, assigned very specific duties in conducting the reopened proceed-ings, has seen fit to make Recommendations concerning individuals, Recommendations that are clearly beyond the scope of the proceed-ings or his authority, and yet Recommendations that have a tremen-dous impact, not only on the Press, but also on the lives of W and his family.
There is nothing to be gained by criminal prose-cution of W, and it can only be hoped that the Licensing Board in its wisdom will recognize this error and not recommend any prose-cution of W.
Respectfully Submitted, SMITH AND SMITH, P.C.
^I
^
Date:
C%1
/.) _/INd By c
- .:/
b bel V
David E. Cole Attorneys for One Unnamed Individual 2931 North Front Street Harrisburg, PA 17110 717/232-0506 t.
w
,-.-.g2.-,a4.m2-e a.
-.---.--+--- -- - - -..-
.2
_m----e..-2m
==_#=_.
. _-. 2m
,a.mma m.
a _m so. A 4 a m,u..s..
a m e. aw44 w m a m u a m2_u.__
T f
i s
j a
k i
f 4
6 t
e i
k.
J l
I i
W P
i i
i i.
I i
I i
f h
I i
4 5
e i
e i
b b
e
(
ll
<t l.
9 F
l t
t a
4 w~e w..%v----
s M
patriot s
Vol nie 4sertlaan
" "" " '~'"
'In This Edition Business News _
54 $5 otituertes 26 Comica. Contract Bridge.
70 71 Reading for se==uw 24 a
Crossword Puzale
.?.. '* '18 5 porta 56*.64 Edita-sala --
I 4 Televistos
$0.
~
IJving.
,)0 34.. Theatac Pages. '
28,29
...<S Harriehuts.'Pa THUltSDAY' Apet 28.1903..23e 'T.
,'./
- d.'@ D, %
Prus&ution of 2 t_rged n.a Igs).V se.s Yh *II Exam Cheating s
WASH:NGTON fUPI 4 Two General Public Utilities Corp con.
forntr shift 31perdoors)at Three. cluding.*In light of the number of,*
Mite Island 'Nucleaf Generating persons who were compromised, g } g,fx, ufp.
{
gg gh [
2 station should face crimiest prose., and their pos'.tlons on the opera.
, y.,
cuttor. on chargce they chested ce tions statt... the overall level of l
examlutions, a special report to integrity of the operations statt has a.n,ccon,me.egulatory Commle-been shown to b.e inadequate..* in-=o-the Nuclear R 1,OS0CutIOn O d wedse,.
. The io The report was hghly critical by Administrative Judge Gary Mil-of Thris Mlle taland a operator.. hollin was authortzed try the NRC
_. ~~.' '
after allegations of cheating on From rase cee erste safely Three Mile taland Unit reactor operatur examinations at I."
Tt'ree Mlle Idand. The cheating al.
the NRC. Milhollin said the cheat.
That key determination is up to legedly occurred in April of last ing "did not occur in the lower the Atomic Safety and Licensing year.
ranks c f the operations staff. It oc.
130ard. he said.
Milhollin's conclusions in a curred in the middle and upper The entire. two-scactor facility comples, l%page report present ranks. The senior operations engl. near Middletown. Pa-. was shut another major obstarle to General neer. the two shif t supervisors. and down three years ago after the Public Utihties' etfort to restart the the shift foreman came from those worst accider t in the history of undamaged Unit I reactor at'three rar.k s."
commercial nuclear power octured Mile 1s12n0.
M.thollin called Ge'ieral Public at the TMI Unit 2 reactor.
The examinations were given Utilities' er. tire traimns and testmg as part of a traint<3 program for pror. ram at TMI Umt i "poorly ad.
On March M. @ a bsa d personnel who would operate the mimste;ed. weak in content. inef.
Ih' 'I*Y' '" ***I"#I C"YUMN reactar after the NRC approves a fcctive in its method of instruction
" ' ^ ' " "
restart.
and not an adequate response to the On the issue of crimi' sat Milhollin found that while the commission's order."
charges, Milholhn said "the threat company's management did not en*
And he told the commission the to the pubhc health and safety courage or participate in the cheat.
company's respan'e to the cheating posed by u::qualif.ed operators and leg. It "must have known of the "was Wdcquatt knd its testimony supervisors" at the reactor prompt.
tow ard the N RC exam; nation.,tudeat the hearing on that subject was ed him to " recommend criminal widespread, negathe attl and not credible."
prosecution."
as a result " tailed in its resfonsibil*
Thr special master, however.
He said there was a " generally l
ity toinstillin the operattons stalf a dtJ not make a recommendation on disrespectfut attitude at TMI.I proper attitude toward the NRC whether. In light of his darnaging toward the NRC examination." He examination."
conclusions, the company has also found that one of the shif t su.
Acting as a"special master"for
" demonstrated the necessary level pervisors has taken an "unrepen-of competence and integrfty to op.
tant posture" about the cheating.
See arroat-Page 3 9
l
s
_y--
- .F
~~
. -;3 n
m
- c. < E I!
i S5
- ^3 UihR;
'82 Mf 24 M1 :46 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 0FFICE CF SEG 0006E TING & 5t" -
BRANCH ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF DOCKET NO. 50-289 METROPOLITAN EDISON COMPANY (RESTART)
(Three Mile Island Nuclear Station, Unit No. 1)
(Reopened Proceeding)
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of COMMENTS OF ONE OF THREE INDIVIDUALS TO REPORT OF THE SPECIAL MASTER, dated May 17, 1982, was served to all persons on the attached Service List by deposit in the United States Mail, postage prepaid, on this Ik day of May, 1982.
/)c u_ c k E bb DAVID E.
COLE, ESQ.
?
y UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF DOCKET NO. 50-289 METROPOLITAN EDISON COMPANY (RESTART)
(Three Mile Island Nuclear Station, Unit No. 1)
(Reopened Proceeding)
SERVICE LIST Administrative Judge Jack R. Goldberg, Esq. (4)
Ivan W. Smith (2)
Office of Executive Chairman, Atomic Safety &
Legal Director Licensing Board U.S.
Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Chairman, Atomic Safety &
Administrative Judge Licensing Board Panel Walter H. Jordan U.S. Nuclear Regulatory Atomic Safety & Licensing Board Commission 881 W. Outer Dr.
Washington, D.C.
20555 Oak Ridge, TN 27830 Chairman, Atomic Safety &
Administrative Judge Licensing Appeal Board Panel Linda W. Little U.S.
Nuclear Regulatory Atomic Safety & Licensing Board Commission 5000 Hermitage Dr.
Washington, D.C.
20555 Raleigh, NC 27612 Robert Adler, Esq.
Administrative Judge Karin W. Carter, Esq.
Gary L. Milhollin Assistant Attorneys General Atomic Safety & Licensing Board 505 Executive House 1815 Jefferson St.
P. O. Box 2357 Madison, WI 53711 Harrisburg, PA 17120 e
u Attorney General of New Jersey _
Mr. Chauncey Kepford Attention:
Thomas J. Germine, Esq.
Ms. Judith H. Johnsrud Deputy Attorney General
~
Environmental Coalition Division of Law - Room 316 on Nuclear Power 1100 Raymond Boulevard 433 Orlando Ave.
Newark, NJ 07102 State College, PA 16801 John A. Levin, Esq.
Mr. Steven C. Sholly Assistant Counsel Union of Concerned Scientists Pennsylvania Public Utility 1346 Connecticut Ave., N.W.
Commission Suite 1101 t
P. O. Box 3265 Washington, D.C.
20036_
Harrisburg, PA 17120 Mr. Robert Q. Pollard John E. Minnich, Chairman 609 Montpelier St.
Dauphin County Board of Baltimore, MD 21218 Commissioners Dauphin County Courthouse Mr. Marvin I. Lewis Front and Market Sts.
6504 Bradford Terrace Harrisburg, PA 17101 Philadelphia, PA 19149 Walter W. Cohen, Esq.
Ms. Louise Bradford Consumer Advocate TMI ALERT Office of Consumer Advocate 1011 Green St.
1425 Strawberry Square Harrisburg, PA 17102 Harrisburg, PA 17127 Ms. Gail Phelps Docketing & Service Section (3)
ANGRY
~
Office of the Secretary 245 W.
Philadelphia St.
U.S. Nuclear Regulatory York, PA 17404 Commission Washington, D.C.
20555 Mr. Norman Aamodt R.
D.
- 5 Jordan D. Cunningham, Esq.
Coatesville, PA 19320 Fox, Farr, Goldstein & Cunningham 2320 N. Second St.
John Clewett, Esq.
Harrisburg, PA 17110 The Christic Institute 1324 N. Capitol St.
Ellyn R. Weiss, Esq.
Washington, D.C.
20002 William S. Jordan III, Esq.
Harmon & Weiss Mr. Henry D.
Hukill 1725 Eye St.,
N.W.,
Suite 506 Vice President Washington, D.C.
20006 GPU Nuclear Corporation P. O. Box 480 Middletown, PA 17057 Michael F. McBride, Esq.
LeBouef, Lamb, Leiby & MacRae 1333 New Hampshire Ave., N.W.
Suite 1100 Washington, D. C.
20036.