ML20058G466
| ML20058G466 | |
| Person / Time | |
|---|---|
| Site: | Zimmer |
| Issue date: | 07/30/1982 |
| From: | Bernabei L GOVERNMENT ACCOUNTABILITY PROJECT, MIAMI VALLEY POWER PROJECT |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8208030331 | |
| Download: ML20058G466 (28) | |
Text
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Y \\ \\()G UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY COMMISSION 82 g -2 FBt
TO DISQUALIFY STAFF ATTORNEY FROM LICP,@,IhOF SMI MIAMI VALLEY POWER PROJECT'S PETITJO?L 3Dggf' b Fa g
PROCEEDINGS FOR THE ZIMMER PLANT INTRODUCTION 003ETNUMBER ggg
- O N" ' <' M* *'"**'
l.
This petition to the Nuclear Regulatory Commission ("NRC")
is brought by Miami Valley. Power Project ("MVPP"), Intervenor in the licensing proceedings for the William H.
Zimmer Nuclear Power Station; The petition requests that the Commission disqualify staff counsel Charles Barth from participation in these proceedings because of his refusal to develop a full.and fair record for the Board, his obvious bias in favor of the Applicants, and his inability to represent the agency's;inte. rests without conflict.
Petitioner, learned of Mr. Barth's improper conduet through documents obtained recen.tly that formed a portion of a draft OIA Report, and Mr. Barth.'s refusal to represent the agency's position in support of reopening the Zimmer licensing hearings.
The Commission has ruled clearly that the NRC staff attorney's responsibility in licensing hearings is to develop a full record for decision and bring all relevant information to the Board's attention.
Mr. Barth has clearly failed in his duty and must be disqualified.
This petition is brought before the Commission since 8208030331 820730 PDR ADOCK 05000359 O
PDR Tsoa
. the Commission is ultimately responsible for determining the proper shape of licensing proceedings and the responsibilities of the parties and their attorneys.
DESCRIPTION OF THE PETITIONER 2.
The Miami Valley Power Project is a grassroots group of concerned citizens in the Cincinnati area who question whether, :if the Zimmer plant is licensed,the public health and safety can be assured.
MVPP is an intervenor of longstanding in the Zimmer licensing pro-ccedings.
MVPP recently requested that the licensing hearings be reopened for the litigation of eight new contentions about system-wide deficiencies in the quality assurance program and the appli-cants'
(" Cincinnati Gas & Electric Company" or "CG&E") character and competence to operate a nuclear reactor.
On July 15, 1982, the Licensing Board adopted sua sponte MVPP's proposed eight contentions and set a prehearig conference for August 3 and 4, 1982.
JURISDICTION 3.
This petition is brought before the Commission pursuant to the authority granted to it in 42 U.S.C.
SS 2232, 2233(d) and 2236(a) and 10 C.F.R. SS 2.206 (c) (1), 50.100 and 50.109, and invokes the inherent supervisory authority of the Commission to oversee all aspects of the regulatory and licensing process.
The Commission ultimately has the " overriding responsibility for assuring public health and safety of the operation of nuclear power facilities."
In the Matter of Consolidated Edison Company (Indian Point, Units 1, 2 and 3), CLI-75-8, NRC I-7518, 173,175, (19.7 5).
. Unarguably the NRC has an inherent supervisory authority over the conduct of adjudicatory proceedings before the Commission, to provide guidance on important issues of law or policy, or, more simply, to rule on the admissibility of. contentions before the Licensing Board.
In the Matter of U.S.
Energy Research and Dcvelopment Administration Project Management Corp., Tennessee l
l Valley Authority (Clinch River Breeder Reactor), CLI-76-13, l
4 NRC 67, 75-76 (1976)
(" Clinch River Breeder").
See also l
Petition for Emergency and Remedial Action, CLI-78-6, 7 NRC 400 404 (1978).
The only restraints on'.that inherent authority is that the Commission place its~ action "on-the record" and submit a reasoned explanation for its conclusions.: Public Service Company of New l
Hampshire (Seabrook Station, Units.1 & 2)/.CLI-77-8, 5 NRC 503, 516-17 (1977).
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4.
The inherent authority of the Commission'has.been exercised on a number of occasions-including the following:
Clinch River Breeder, supra (Commission reviewed sua sponte issues that Appeal Board declined to review, including Licensing Board i
1 ruling admitting into controversy contentions related to need for alternatives to the breeder program);
Public Service Company of l
New Hampshire, supra (Commission outlined how the Licensing Board' should conduct additional site comparison that was required and l
the circumstances under which construction could be resumed); In the Matter of Consumers Power Company (Midland, Units 1 & 2 ), CLI -7 3-7 8, l
l 8
-4 RAI 73-12, 1084 (Director of Nuclear Reactor Regulation had authority to take summary action to suspend cadwelding activities and later modify order).
5.
The Commission's authority to supervise staff counsel, and by implication disqualify staff counsel from further participation in the Zimmer licensing proceedings, is explicitly recognized in-10 C.F.R.
E 2.206(c) (1) that provides:
This reviewing power does not' limit in any way either the Commission's supervisory power over delegated Staff actions or the Commission's power-to consult with the staff on a formal or informal basis-regarding the. institution of proceedings under this section.
6.
In this case it is appropriate that the Commission exercise its supervisory authority because of the serious charges of improper conduct of NRC staff counsel Charles Barth, and the-inability of the Licensing. Board to address the issue without an evidentiary hearing going to the merits of the newly-admitted contentions.
The Commission also has an interest beyond this particular licensing proceeding to ensure that NRC staff counsel understand clearly their duties and responsibilities in licensing hearings and that they assume their professional duties to carry out the public interest.
See generally In the Matter of Carolina Power and Light Company (Shearon Harris Huclear Power Plant, Units 1, 2, 3& 4), CLI-80-12, 11 NRC 514 (1980) (The Commission, pursuant to supervisory authority over the NRC staff in even administrative functions directed staff to conduct its assessment of applicant's capability to operate the facility in accordance with Appeal Board's directions) ;
Niagara Mohawk Power Corp.
(Nine Mile Point, Unit 2), CLI-73-28, 6 AEC 995 (1973).
8
. STATEMENT OF THE FACTS A.
BARTH'S WITHHOLDING OF IMPORTANT INFORMATION, 7.
According to a draft of a report done by the NRC's Office of Investigation and Audit ("OIA"), a special investigator with the j
House of Representatives Subcommittee on Energy, Environment and Natural Resources on assignment from the NRC, told OIA investigators that Mr. Barth, while serving as staff counsel in the Zimmer licensing proceedings, personally called the chairman of the licensing board to ask him to discard important and relevant information about the applicants' representations to the NRC forwarded by James G.
Keppler, Director of Region III.
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8.
MVPP obtained this interview ("Harpster interview") under c'orditions tha't indicate with great reliability that it was contained in a draft version of the OIA1 Report.
See H'arpster interview, attached and incorporated herein as Attachment A'1[ The investigator,
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reactor preoperation specialist Terry Harpster, formerly with the Office of Investigation and Enforcement, according to this interview, told OIA investigators the following:
(a) he was working as a preoperations start-up inspector at Zimmer from October, 1977 until March, 1979.
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(b)
Harpster said that during this period, at a meeting of the Advisory Committee on Reactor Safeguards (ACRS), ACRS Chairman Bender questioned applicants' officials, including Jim Schott (CG&E plant manager) who made untrue statements.
Harpster said his co-worker, inspector John Menning, also believed statements made by applicants to the ACRS were false.
1/ Mr. Harpster now apparently disagrees with a part of this interview whereas the OIA investigator defends its accuracy.
(c) Harpster told Robert Warnick of these inconsistencies.
Later Harpster, Menning, and Warnick confronted Schott with his testimony to the ACRS.
According to Harpster, Schott agreed that his testimony "did not convey the correct impression" and he would clarify it at the next ACRS meeting.
(d)
Harpster said Schott did not correct his testimony but instead aggravated the falsehoods.
(c)
Harpster said that he told NRC management officials about the misstatements and that Region III Director James G.
Keppler sent a letter to the ACRS informing them of the misstate-ments.
Harpster said he believes Keppler's letter was later forwarded to the Atomic Safety and Licensing Board (" Board")
presiding over the licensing hearings.
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(f)
Harpster said he was informed by Irv Peltier of the Office of Nuclear Reactor Regulation that Charles Barth, staff counsel, telephoned the Chairman of the Board to tel'5 'im to
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" throw away Keppler's letter describing the discrepancies."
(g)
Harpster said Barth's conduct was later investigated by OIA.
B.
BARTH'S FAILURE TO, REPRESENT THE NRC's POSITION ON REOPENING THE LICENSING HEARINGS.
9.
Mr. Barth did not support the NRC's position in support of MVPP's motion to reopen the licensing hearings even though the agency had clearly and unequivocally taken the position that it supported reopening of the proceedings to litigate the issues of the adequacy of applicants' quality assurance program and the applicants' character and competence to operate a nuclear reactor.
e
, + - - - - -
In an apparent effort to obstruct the agency's filing of a response in support of reopening, Mr. Barth, as staff counsel, filed on June 7, 1982, a frivolous pleading in which he stated he could not f
contact MVPP's counsel by telephone because his home phone number had been changed.
Mr. Barth at no time attempted to contact intervenor's counsel at his place of business, the phone number listed on all pleadings, or at the home phone ~-numbers for intervenor's two attorneys listed in the 1981 and 1982 phone books.
See Motion for Extension of Time, attached and incorporated herein l
as Attachment B.
l 10.
Later fir. Barth refused to sign the pleading submitted l
by the NRC in support of MVPP's motion to admit new contentions on quality assurance and character and competence.
He apparently explained to the. press that he had refused to sign the pleading's because he did not agree with the agency's position.
See Cincinnati Post article,' June 14, 1982, attached and-incorporated
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herein as Attachment C.
Subsequently Mr. Barth has participated i
in these reopened proceedings as counsel for the NRC staff.
STATEMENT OF THE LAW 11.
The Commission is entrusted, under the Atomic Energy Act, with the basic responsibility of assuring the public health and safety in the operation of nuclear power facilities.
In i
implementing this responsibility the Commission must clearly and precisely define the duties of NRC staff counsel in licensing proceedings.
See NRC regulations cited above.
12.
NRC staff counsel have an important role in licensing D
hearings as the neutral, objective parties whose chief duty is to bring new and relevant information to the Licensing Board's attention.
The other parties, both applicants and intervenors, while under the same duty of candor, are primarily advocates.
NRC staff is also responsible for certifying the technical competence of the applicants.
A.
MR. BARTH'S DELIBERATE ATTEMPT TO WITHHOLD'IMPORTANT, RELEVANT'INFORMATION'FROM THE LICENSING BOARD.
13.
NRC staff counsel, just as all parties to a licensing proceeding, have a duty to inform the Board of all new information relevant and material to the matters being adjudicated in a timely manner.
This disclosure, one Appeal Board has held, "goes to the very heart of the adjudicatory process."
D, uke Power Company (McGuire Nuclear Station, Units 1 & 2), ALAB-143, 6 AEC 623 (1973).
14.
The Commission has stated in unequivocal terms that the Licensing Board, the parties ~in a proceeding and,the public have a right to be promptly informed of discovery of new information before staff evaluation ~of the~information, and without regard to j
whether or not the adjudicatory record is open.
Virginia Electric
& Power Company (North An6a Power Station, Units 1 & 2), 4 NRC 480, 491-92, n.
11 (1976), aff., Virginia Electric Power Co._v. N.R.C.,
571 F.2d 1289 (4th Cir. 1978)
(" North Anna").
15.
NRC staff counsel have the same responsibility as all other counsel appearing before the licensing boards, what one Appeal Board called "the m-est and iron-clad obligation of i
candor."
Public Service Company of Oklahoma (Black Fox Station, Units 1 & 2), ALAB-505, 8 NRC 527, 532 (1978). (The Appeal Board 9
l
said this obligation was not fulfilled when counsel failed to call f
to its attention facts in the record that cast a different light on the substance of counsel's arguments).
16.
Of critical importance is that the Commission has held that staff counsel have a special responsibility, as attorneys for.
i the agency, to assure that the record in any proceeding is sufficiently developed on the issues to permit a well-reasoned and sound agency decision.
Vermont Yankee Nuclear Power Corp.
1 j -
(Vermont Yankee Nuclear Power Station), Docket No. 50-271, 4 AEC
- 429, 432 (1970).
17.
NRC staff c.ounsel's responsibility is the same as any government attorney participating in an administrative proceeding.
The Code of Professional Responsibility has defined this duty as "the responsibility to seek justice and to develop a full and e
should not use his position or the economic
{
l fair record....[{)T power of the government to harass parties or to bring about unjust settlements or results." A.B.A. Code of Professional Responsibility.
1 see also, Federal Ethical l
Ethical Consideration 7-14 (1970);
Consideration 7-2, Federal Bar Association (1973), cited in N.
Poirier, The Federal Government Lawyer and Professional Ethics, t
60 A.B.A.J'.
154 (1974).
18.
NRC staff counsel has an affirmative duty of disclosure, l
especially when he or she possesses information that can clarify or correct some testimony or evidence already presented to the Licensing Board.
Carolina Power & Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3& 4), CLI-78-18, 8 NRC 293 l
(1978).
In this case, not only did Mr. Barth neglect to disclose
,, ~. _,.,.,,, _ _., _.,
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important information about the falsity of applicants' statements to the ACRS, he attempted affirmatively to remove it from consideration by the Licensing Board.
Mr. Barth did this after the Director of Region III himself forwarded the evidence to the Licensing Board.
19.
Mr. Barth deliberately violated his duties under relevant Commission decisions and the Code of Professional Responsibility and, therefore, must be barred from further participation in the Zimmer licensing hearings.
His continued representation of the agency is especially improper here, where- -
one of the contentions being litigated is the character and integrity of the applicants to operate a nuclear plant.
The information Mr. Barth attempted to suppress concerned applicant,s' misrepresentations.
Evidence of these misrepresentations is of crucial importance, not only to the contentions currently before
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the' Board, but to any decision by the Licensing Board or the staff about the applicants' ' ability 'to comply voluntarily,as a licensee, with the Commission's rules and regulations.
Complete i
and full disclosure of all relevant facts by applicants and licensees is essential for the Commission to protect the public l
health.
North Anna, supra, 4 NRC at 490-91; Matter of Hamlin.
Testing Laboratories, Inc., 2 AEC 423, 428 (1964);
Houston Lighting and Power Company (South Texas Project, Units 1 & 2),
CLI-80-32, 12'NRC 281, 291 (1980);
F.C.C.
- v. WOKO, 329 U.S.
223 (1946).
20.
Mr. Barth has demonstrated that he lacks a fundamental understanding of his role or the NRC's important responsibilities I
in licensing nuclear power plants.
w
i '
B.
MR. BARTH HAS A CRIPPLING CONFLICT OF INTEREST THAT PREVENTS HIM FROM EFFECTIVELY REPRESENTING i
THE NRC.
f 21.
Staff counsel must represent the agency's position j
which, as outlined above,.is first and foremost to protect the public health and safety in the operation of nuclear power plants.
I In the context.of a licensing hearing, the staff counsel's chief responsibility is to help the Board develop a full-and complete l
record to serve as the' basis for sound decisionmaking.
l l
22.
Mr.rBarth's apparent bias.has prevented him,-on at l
least two occasions, from representing that interest.
In a pleading filed on June 7, 1982, he reported falsely to the Board that he was unable to contact Intervenor's counsel when both attorneys' business and home phone numbers were accessible.
Moreover, Re ion III representatives contacted Intervenor's' counsel during this
(
same period'of time'on'a daily basis.
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Of grea'ter consequ'ence isi r. Barth's' refusal to sign M
23.
I a plea' ding for the NRC when he disagreed with the agency's position.
The N'R'C supported Intervenor's motion to reopen the Mr". Barth not onlly ' refused to submit the agency's i
proceeding.
pleading in which the NRC-took that position', but he to'ld the press publicly that he disagreed with that position.
24.
Mr. Barth clearly has a conflict of interest in that he is unable to put the interest of his client -- the NRC --
before his personal bias in this case.
25.
Attorneys practicing before the NRC are subject to the l
same professional standards and constraints as attorneys practicing i-before federal courts.
a n
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v,-,
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A motion to disqualify counsel is, therefore, the proper method for a party to bring the problem of an attorney's conflict l
of interest to the attention of the adjudicatory body, whether it i
be this commission or a federal court. Sanders v.
Russell, 401 F.2d 241, 246 (5th Cir. 1968).
26.
Mr. Barth's refusal to sign a pleading representing the position of his client, the NRC, is the clearest evidence of his refusal to give undivided loyalty to the NRC.
This type of professional conduct violates all professional and ethical standards of the legal ~ profession.
International Business Machines Corp. v.
Levin, 579 F.2d 271, 283 (3rd Cir. 1978).
27.
Moreover, even if the Commission found that Mr. Barth y
now has undivided loyalty to(the Commission,-it', as a court, has the responsibility to disqualify Mr. Barth because of the
" appearance of conflict" which has already been disclosed to the public.
In speaking openly to th'e. press about his personal disagreement with his client Mr. Barth has eroded public confidence in the NRC's position, and specifically in his ability adequately to represent the agency.
The Code of Professional Responsibility has expressly recognized that all attorneys must avoid even the appearance of impropriety or conflict of interest because such conduct may " erode public confidence in the judicial system or the legal profession."
ABA Code of Professional Responsibility, EC 9-2 (1970);
Woods v. Covington City Bank, 537 F.2d 804, 813' (5th Cir. 1976); Richardscn v. Hamilton International Corp., 469 F.2d 1382, 1385-86 (3rd Cir. 1972);
See also, General Motors Corp. v. City of New York, 501 F.2d 639, 641 (2nd Cir. 1974);
United States v.
Trafficante, 328 F.2d 117, 120 (5th Cir. 1964).
a
1.
i 28.
Mr. Barth's conduct is especially harmful to the NRC because the public's confidence in the entire Zimmer project is at its lowest.
The NRC has already subjected applicants to an unprecedented fine and yet weekly new revelations arise about applicants' misrepresentations and problems in the construction and quality assurance programs at Zimmer.
The legitimacy of these licensing proceedings can be maintained in the eyes of the public only if the public can be confident that NRC staff counsel is objective and will not obstruct a full and fair airing of the~ issues.
Mr. Barth no longer can serve in that role.and is not a suitable representative.
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RELIEF REQUESTED For the reasons' enunciated above, petitioner' states that the following relief is required:
(a) The Commission shall disqualify Mr. Barth as NRC staff counsel from any further participation in the Zimmer licensing proceedings;,
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(b)
The Commission shall order an investigation into Mr.
Barth's deliberate attempt to withhold important informdtion about the applicants' misrepresentations to the ACRS from the Licensing Board; and (c)
The Commission shall order an investigation into the applicants' reported misrepresentations to the ACRS.
I
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i By the Miami Valley Power Project By their attorney l AAXJ A"
' Lynn6 Bernabei Gove nment Accountability Project of t
Institute for Policy Studies 1901, ue Street, N.W.
j a hington, D.C. 20009
(
(202)-234-9382
(
i I hereby affirm that 'the facts alleged herein are true and correct
- . I to the best of my knowledge and belief..
]
l
/1 0
L<_.
W Ly' e' Bernabel I
l DATED:
July 30, 1982 e
l l
l l.
00' KETEC-DEE CERTIFICATE OF SERVICE IherebycertifythatcopiesoftheforegoingIntrvdhbr~
MVPP's Petition to Disqualify NRC Staff Counsel Charles Barth has been served upon the following by mailing copies firstE 0F SECRt.l-EfNI"5 class, postage prepaid, this 30th day of July, 1982:
00cFEj
- Chairman Nunzio J.
Palladino
- Howard A. Wilber U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
20555 Appeal Board, U.S. Nuclear Regulatory Commission
- Commissioner John F.
Ahearne~
Washington, D.C.
20555 U.S. Nuclear Regulatory Commission
- Judge John H. Frye, III Washington, D.C.
20555 Chairman, Atomic Safety and Licensing Board, U.S. Nuclear
- Commissioner James K. Asselstine Regulatory Commission U.S.
Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555
- Charles A.
Barth, Esq.
Counsel for the NRC Staff
- Commissioner Thomas M.
Roberts Office of the Executive Legal U.S. Nuclear Regulatory
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- Director, U.S. Nuclear Commission Regulatory., Commission Washington, D.C.
20555 Washington, D.C.
20555
- Commissioner Victor Gilinsky
- Dr.
Frank F.
Hooper U.S. Nuclear Regulatory Sierra Nevada Aquatic Research Commission Laboratory Route 1 Washington, D.C.
20555' Box 198
- Leonard Bickwit, Esquire Mammoth Lakes, CA 93546 General Counsel U.S. Nuclear Regulatory
- Dr.
M.
Stanley Livingston Commission Administrative Judge Washington, D.C.
20555 1005 Calle Largo Sante Fe, N.M.
87501
- Alan S.
Rosenthal, Chairman Atomic Safety and Licensing Appeal
- Chairman, Atomic Safety and
- Board, U.S. Nuclear Licensing Appeal Board Panel Regulatory Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555
- Stephen F.
Eilperin Atomic Safety and Licensing
- Chairman, Atomic Safety and Appeal Board, U.S.
Nuclear Licensing Board Panel Regulatory Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20S55
. Robert F.
Warnick
- Docketing and Service Branch.
Director, Enforcement and Office of the Secretary Investigation U.S.
Nuclear Regulatory Commission NRC Region III Washington, D.C.
20555 799 Roosevelt Road Glen Ellyn, IL 60137 David K.
Martin, Esq.
Assistant Attorney General Deborah Faber Webb, Esq.
Acting Director, Division 7967 Alexandria Pike of Environmental Law Alexandria, Kentucky 41001 209 St. Clair Street Frankfort, KY 40601 Andrew B.
Dennison, Esq.
Attorney at Law William J.
Moran, Esq.
200 Main Street Vice President.and General Counsel Batavia, Ohio 45103 The Cincinnati Gas and Electric Company Troy B.
Conner, Esq.
P.O.
Box 960 Conner & Wetterhahn C_incinnati, OH 45201 1747 Pennsylvania Ave., N.W.
Washington, D.C.
20006 John D.
Woliver, Esq.
Clermont County
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Community Council Box 181 Batavia, Ohio 45103 Brian Cassidy, Esq.
Regional Counsel Federal Emergency Management Agency Region I John W.
McCormack POCH Bo s ton, MASS 02109 George E.
Pattison, Esq.
Prosecuting Attorney of-Clermont County, Ohio 462 Main Street Batavia, Ohio 45103 4
I
/7 A x 1, M
Lyn.
'Sernabel
- Delivered through NRC Internal Mails.
- Express mail
p ATTACH!iENT A l
qu'istioned Phillip as to whether NRC had jurisdiction over matters such of caterials from the site, or 3) as 1) managenent problems, 2) thef t I
veapons violations (Vhich Willia = son understood to be within the juris-y Williamson diction of the Bureau of Alcohol, Tobacco and Fireanss).
recalled Phillip's saying that this was something he had to look over in order to sort out Applegate's concerns.
Uilliamson did not recall any issues as to Ohich were or were not URC l
- Phillip's singling out Willic son said that after dinner at about 8:00 pm he and concerns.
Phillip vent their separate ways at the notel.
The next morning Phillip called Applegate and asked hha a few additional Williamson said he was in the same room at the notel during qu estions.
Williamson said the call lasted about 10 or Phillip's telephone call.
Uilliamson could'not recall the substance of the call 15 ninutes.
because much of the technical aspects were foreign to him at the time.
Williamson did recall Phillip's going through some of the documents with Williamson said-that Phillip had reviewed the documents the Applegate.
W1111a= son said night before ond made some notes concerning them.
Phillip left Cincinnati about 10:00 that morning and he (Williamson)
Icft a few hours later.
Willic= son recalled talking with Ward upon his return"to Headquarters.
He said he told Hard that the only allegation he saw that was within hRC's jurisdiction was the issue about the piping being dropped off the two or three Williamsca said this conversation only lasted about truck.
minutes.
Williamson guessed that his next contact with Phillip was so'Ectice in the next two or three vecks.
W1111a= son said he later (in Iby) received The newscaster a call from a newscastcr from Channel '9 in Cincinnati.
had a copy of Phillip3s letter to Applegate describing the issues to be Williamson recalled speaking with Phillip sometime af ter investigated.
Williamson said he had no more being centacted by the aevscaster.
contact with anyone regarding this investigation until the material ccme Williamson said he was out from the Government Accountability Project.
not involved with the writing of the Region III report of investigation.
feel that he had to write anything nor did he ever feel that He did not he would have any input into the report.
Interview of Terry Harpster Terry Harpster, Reactor Prcoperations Specialist, IE, on detail ar g Special Investigator to the Subccanittee on Energy, Environment, acu Government Operations Co=mittee, U.S. House of Untural Resources, Representatives, was intervicued on Mstch 6, "d2', by Invtstigators.
Esvid Gauble and John Sinclair, c.1A.
He Harpster said he uarked in Region III of NRC from 1974 t! rcuch 1979.
said he was a technical support inspector initially for all plante in
?
9 P.egion III.
He later became a project manager for particular plants:
first for DC Cook Unit 2, then Monticello, then both Zi=mer and Monticello
.at the same time.
Harpster. said he began his inspection activities at Zimmer in October 1977 as a preoperations start-up inspector.
He said he was assigned to this position until he left Region III in September a
1979; however, he had no real involvement with Zimmer after the Three e
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N11e Island (Dil) accident in Fbech 1979. Earpster said that a pre-operations inspector picks up a plant when construction is far enough
- along, i.e., about 60 percent completed, to review certain programs, e.g., the gun 11ty control program for.preoperational work.
Harpster said that Tom Vandel was his counterpart as the lead construction inspector.
Vandel had inspected Zi=cer prior to Harpster's arrival but there was a
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period of overlap when they both worked there. 'Harpster said John Menning
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worked with him as a preoperations inspector who he was training.
ep Harpster said that Manning "took one look"-and lef t the NRC because the i,[j-program was so bad. He related that one of Kenning's reasons for 1 caving.
was that he raw how little support the inspectors got on the job.
Harpster understood that Menning left to attend the University of Arizona where he is aorking on his Ph.D. in ' metallurgy.
Harpster said that when he picked up Zicner the licensee (Cincinnati Gas and Electric Company) had little appreciation fog, the amount of resources needed for the plant.
He said they barely met ANSI Standard 18.1 which is the criteria for staffing.
Harpster explained that even this standard is a loose one which has since been upgraded.
Harpster said that one of his jobs was to show the plant management what was required to get the j
plant off the ground.
He said that his faspections documented a number i
l of probicas at Zimmer.
Harpster said that, for exampic the ceployee who was being placed, in charge of the start up operation only had about three nonths of actual experience in the plant.
He explained that the I
licensee counted as nuclear experience the. amount of time operations s.
employees were insite 'during the construction of Zimmer.
Ano'ther' example
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once the parts' was his impression that the plant personnel felt that, bere bought for-the plant, they did not need any support from their corporate officec.
He also believed that many plant. personnel felt a~
r I
h* "
' nuclear plant.was ;Leilar to the operation of a fossil fuel plant.
l Harpster said that he tried to resolve some of these problems informally; including going up thr6 ugh the licensec management chain to Vice President Earl Borgmann, but with no luck.
Harpster said he was successful in getting a reeting set up is Bethesda to discuss apparent weaknesses with licensce's organization and staffing.
He said this meeting was held on July 13, 1978, only after he " screamed."
licensing officials in Bethesda, particularly Irv Peltier who was 5
e at l
i
.,.then project manager in 1U01 responsibic for issuing the safety eva uat on report (SER).
Harpster said that he presented his concerno at that He recc11ed meeting and the utility agreed to upgrade their progran.
the specific responses was to " buy" sn engineer frc= Cencral Electri:
that I
to assist them.
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c Harpster said that Borgmann was also putting th'e heat on him by, for evampic, sending a 1ctter to Kcppler.
Harpster also understood that the Chairnan of the licensee sent a letter to President Carter and others.
Harpster said that it was about this time that the TMI accident occurred.
He; said he was assigned to TMI and he has not been back to Zincer since..
Harpster said that, when he Icft, Zicncr still had problems.
A principal one was that, as' a practical matter, there was no QA program for operations.
He said that all Zhscer had was one person assigned to this function and that person could not possibly do all that the job required.
realistically the IE modular inspection progrnE does Harpster said that not deal with the things you have to focus on early in a plant's life.
tie said that an inspector cust deal with the probic=s he knows are
.inportant and then deal with other ~probicos in addition.
Harpster said that he had to deal with the construction pcopic soccwhat at Zimmer. ' He said that the licensee had minical involvement with the construction at this Zimmer:
everything was controlled by its contractor. He said that is a problem because, after the plant is built and the contractor leaves, He said the licensee would not have any expertisc to handle the plant.
that for' example there was no one on the licensce's corporate staff for reactor instrumentation and control systems.
Harpster felt that this N"
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licensee was "in over its head."
Earpster. said. that people of ten bring matters to an inspector's attention.'
He said that an inspector can deal with some of these matters, but there are acce which he cannot.
Harpster said that sometimes so nany things are wrong that a plant ic,out of. control. Ibrpster concluded that "Zimmer was out of control." Harpster explained that a licensce's ability to get money for the construction of a nuclear power plant (by, e.g., the sale of bonds) is based upon the percentage of co=pletion of the plant.
He said that this resu,1ts in a situation where the construction perscnnel attempt to turn things over as completed before they are ready.
Harpster said that what then happens is that the licensee. staff is not properly prepared or trained to handic them.
He said when the licensee finds things that are wrong, they cannot fix or test them properly.
What they must do is give the probicos back to construction to be remedied.
Harpster said this is indicative of, a construction QC program tha,t does not work.
He said this is a situation which an NRC prcoperations inspector tries to head of f.
Ec said that one exampic of this was that the licensee had not ordered any spare parts.
According to Harpster the time required to obtain additional or replacement equipment is so long it causes a najor probica to licensees trying to resupply or obtain back-up equipment.
I Harpsler said that sometices plant management puts so much pressure on their personnel that the personnel cannot get things done.
He said that C@
these personnel then sometimes use NRC inspectors to accomplish the same things : they feed inspectors infor=ation so it appearn that. the inspector found the deficiency rather than the plant persem.el. harpster said that, from what he could sec, it appeared that the conctruction progrcm S
l v
b-Harpster expl.ained that had defects and he was about to inherit them.
he was not directly familiar with the construction activities but he saw Harpster said that Inspector the results - including the QA problems.
Fred Maura has documented much of thece probicos from the operations side.
Harpster said that both the site construction manager, Mr. Gear (pho and the site QA manager Mr. Schweirs were friends of Vice President Borgma Harpster believed that Schweirs was assigned by the licensee to keep t Harpster said Schweirs even plant manager (Schott) under control.
called the regional office to try to get some of the IE inspection Harpster said Schweirs also asked him to send IE reports changed. inspection reports to him (Schweirs) so he could decide w would be sent on to Schott.
Harpster said part of the problem was that NRC does not have explicit He said that the preoperations inspector regulations to inspect against.is faced with the task of trying to get c He said that the inspector does not the licensee to solve its probicas.
Harp ster. said document but a small percentage of this " helping work."
tance.
the licensee had no people involved with preoperations and test accep He said that everything was bought under contract so the contractor was Harpster said the lictnsee then had no abic to do whatever it wanted.
one who knew how to handle the problems that were " built-in."
Harpster said he tried to get the plant managers out to the' plant.
there.
to tour the plant because of the convicted felons working out Harpster said that sometimes the licensee's own security fo'rce could handle disturbances and they.had to call the local sherif f's. of fice.
Harpster explained that there is soms drinking of alcohol on all nucle h
construction sites." However, the licensee at Zimmer did not have,muc Harpster said there were a lot of " tough guys" and the situation got worse When they were drinking.
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control of things.
working at the plant there are nany allegations at aNy nuclear power Harpster said Harpster said that plant; howver, usually only a certain number are true.th'ere were a large nu
~
that one could tell that because so many allegations were ceaing up.
Harpster said there was a lot of pressure on individual ic inspectors Harpster because of the nonentum generated by the NRC licensin He explained that the construction said that codtractor's veld production schedules.
keep the manager has to have a certain number of welds co=pleted to h
piping installation on schedule. He said that problems arise Wh
. construction personnel are pushed.
hold up many to stop conctruction for any deficiencies, he would have toso the QO inspe: 3rs phases of the construction of a $1 billion plant; normally do what they are told.
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Harpster said that the overall probicm was that NRC's licensing process was rolling much faster than he could." ratchet" improvements at the ilarpster said that NRC's requirements were a " joke."
He plant end.
said that NRR was about _ to issue the SER and they set up a meeting of the Advisory Committee on Reactor Safeguards (ACRS) to which he was not A
invited.
chain and presented Harpster said he vent up the Region III management He recalled He said he attended the ACRS meeting anyway.
his concerns.
that Vhen licensec officials were questioned by ACRS Chairman Bender, true.
Harpster noted that not they said several things that vere nottrue, but Menning also believed they were only did hji feel they were.not to -his boss, Robert Uarnick, Harpster said he presented this conflict
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not true.
He said that he and Menning when he returned to the regional office.
/
later talked with one of the licensee officials who had testified to the During their ACRS (Jim Schott who was the plant manager,of Zimmer).
conversation, Harpster had Warnick read Schott's testimony to Schott over the phone.
He said that Schott then agreed that the testimony did not convey the correct impression.
Although Schott assured Harpster and the next ACRS meeting, he did not.
Menning that he would clarify this at testimony even aggravated his Harpster believed that Schott's subsequent N
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earlier statements.
l He recalled Harpster said he briefed his management on this natter.
tha?, his Regional Director, James Keppler, sent a letter to the ACRS informing them of the situation.
Harpster underrtood that this letter was later fovarded to t,he Atomic Safety and Licensing Board (ASLB).
after the ACRS meeting, he also informed Peltier Harpster explained' that, He said that Peltier later (in Menning's presenec) of his concerns.
clai=cd that he did not recall Harpster's expressing his concerns to Harpster explained that Peltier is a " pro-nucicar" " pro-licensing"
~
him.
He also explained that during a start-up of a nucicar plant, emplofee.
schedule; the IE inspector is of ten viewed by NRR NRR is on a very tight as an adversary when he uncovers deficiencies which NRR has aircady bicssed.
v.
Pcitier told Harpster that he inforced the licensee about an IE investi-gation underway on the subject of the licensce's testimony before the ACRS. Peltier also inf or=ed Harpster that Charles Barth, Of fice of the Chairman of the ASLBP and Executive Legal Director, called James Yorc, told him to throw away Keppler's letter describing the discrepancies.
Harpster pointed out that these latter two catters were the subject of a recent investigation by OIA.
Harpster said in summary that this was a situation S cre the system broke down:
NRR viewed IE as the bad guys Ci' trying to hold up plant licensing.
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t Harpster said that nuclear power plants employ personnel specifically He said that this is
' designated to serve as the liaison with NRC.
- helpful becauce it overcomes the problem IE inspectors face in trying to find their way through the great amount of paper at the plant.. Harpster g
said, however, this liaison person also " steers" the inspectors' activities.
Harpster said that dealing with this liaison person does allow the inspector to get through NRC's codular inspection program very well.
Harpster noted that there is no real internal audit of the NRC's inspection program.
Harpster described the "hciping activitics" that an IE preoperations inspector engages in as a process.of getting all the procedures and controls in place. He said that this activity constitutes only about two lines in the IE procedures, but it is the largest part of a prcoperations inspector's time.
Harpster, estimated that the interest cost alone is holding up construction of a nucicar power plant for one day would be several hundred thousand dollars.' He observed that with the increased pressure on NRC to licence power plants, he vould expect even more pressure to be placed on IE ins pect ors.
He said that pressures.on the licensee petsonnel to make exceptions to the acceptance criteria in the preoperations tests are He said it is difficult for an IE NRC inspector to tell very real.
whether the licensce's exceptions are based on valid engineering analyses.
He s' aid that all inspectors cannot possibly be expert's in all areas.
Harpster said the inspectors cust rely on the licensee's people to review the exceptions.
Harpster said that this represents a flaw in the NRC's system because the licensee's reviewers are under the same pressure to approve exceptions.
Harpster pointed out that the licensee, because it is a utility, company, cannot pass on th~e amortization costs to the the ratepayers until the plcnt reachts the point of completion, i.e.,
stage of commercial operations.
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Eeview of Welding Records During the. period of the OIA investigation velding records were reviewed which included Radiograph Reports, Weld Revork/ Repair Data Sheets and Weld Data Sheets to identify specific information concerning (1) dates of veld rework and (2) whether or not velds had been replaced.
Complete veld packages identifying all work on the three alleged defective velds were reviewed at which time it was disclosed that rework was being conduqted at the tLac the IE investigative effort was ongoing at the Zimmer site, however, it related to one of the safety-related welds RH-42 and not velds pertaining to velds on prefabricated pipe (spoolc).
Information contained in IE Report 50-350/50-09 describes a review of records uhich disclosed one veld was cut out (E-811) cnd renlaced by a new veld '(K-916).
No date per:cining to the rcuerk was identified in the IE report.
As part of the OlA revicu the velding records for veld
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ATTACHMENT B 7
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.:~. r UtilTED STATES OF /J1 ERICA 9 p.Q-
!(UCLEAR REGULA10RY C0;'JilSSIO(
'1 BE'FORETl!EATOMICSAFETYAihDLICEf;SIllGBOARD
. 'E
.. -; ' P 3 :56
.d f tter oh
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Cl!!CllllATI GAS A!!D ELECTRIC ii.,
Doc'r.et lio. 50-358
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COMPAliY, et al.
SERVED JU,y 0h EZ (t.'m H. Zirrrner iluc.itar Power
)
Stetion, Unit flo.1)
)
liRC STAFF liOTIO!! FOR EXTEliTIO!F0F TIME TO REPLY T0 fil/J:I VALLEY P0ilER PROJECT 140TI0'l FOR LEAVE 10 FILE ADDITIONAL C0!iTE;iTIOliS
~ ~ ~ ~
The liRC Staff (Staff), purusant to 10 C.F.R. si 2.711 and 2.730(c) rnoves this Licensing Board to extend the Staf.f's time to reply to the
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Motion of Miami Valley Power Project (liVPP) for leave to file new contentions relating to quality assurance at the Zirmer site to Friday. June 11, 1982.
~
There are a substantial nurr.ber of factual allegations in the MVPP motion and supporting documents.
This has required review by a number of j
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Staff technical personnel in Bethesda, Maryland, !!oscow, Ohio and Glen I
Ellyn, Illinois as to those factual allegations.
Because of the nced to coordinate the wide spread (geographically) staff assessment of facts,'it is not practicable for t.he Staff adequately to respond to the liVPP notion by Monday June 7, 1982.
Accordingly, we request an extension of time until Friday June 11,1982'to file our response to MVPP's motion.
The undersigned staff counsel attempted to confer with. counsel for
.MVPP and counsel for the Applicants.
Staff counsel was not able to reach Mr. T. Divine, MVPP'S attorney, by telephone today but was advised by the telephone company that Mr. Devine's telephone is disconnected and no new Ju%:r is cv:.i10ie.
A plicats' a u..sti sti.'. :J he cppeses the s':Uf's P
rc. otic a.
Thc undersigned stuff ccunsci telephond d.e Laard Cha:rr.Ln on'-
this date; rade the nation for extension of tir,2 orally; inicr id the o
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Chairman of the. unsuccessful efforts,to reach Mr. Divine; and, infomed f
I the Chairman.that Applicants' counsel opposed the Staff's motion.
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Respectfully submitted,
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Charles A. Barth Counsel for NRC Staff Dated at Bethesda, Maryland
~
this 4th day of June, 1982.
~~
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I GPAHTED this 7th day of June,1982.
THE ATOMIC SAFETY AND LICENS.ING BOARD
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JohF H F 'y, Ill,.Chaiman
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ADMI'IS A IVE JUDGE G
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.' The N RC's' deelston ' ih Na en t!ic matter' he said i 9
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. recommend the licensing betta s d the d!ctston was bcsed c NItC staff had recommended ' plant, but several sources said By Jerry Condo. ' '.., that the Cincinnatl Gas & Elec. several months. One source said re-open Itcensing proceedings of "discre they expect the hearings to last The decision on whether to Ings be re-opened was a matter 'discrettim rather than leg and R,,o,n Liebeu
- y t tric Co. be granted a license to the hearings could take two will be made by the Atomic Guy II. Cunningham,-E N C Cunnin ham rioteit that il
. operate the ll billion plant.
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W ASI' iNOTON - The Nu-years to connpicte.
Safety and 1.lcensing Doard, an meu@ kgal McW.
staffs d ds'on to re-open it I
b ' clear Regulatory Commission CO&E argued last week arm of the NRC.
agalnst re-opening the hear-In supporting a motion made Cunninghtin said' tott ny. :hearirr; does not eenst:tu
'here was internal dtsagreem mt,.agreen ant with the ei ! t c's:
I. starf, citing "possible dental of ings, contending that there was. last month by the Miami Valleyfieveral sources close to the t
I. cpening licensing hearings for that the licensing board needed ing of licensing hearings, which Capitol tilli t
' 'secord today in f avor of re-no significant new evidence Power Project for the re-open-NitC inclicated last wesk on e,n operating l'. cense," went on 4
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F PO?ar Woject.
ended in March, the NRC staff the N RC staff would be an h'arings.
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- I can say there are certainly5.K{
, the troubled Zimmer nuclear to hear.
Itis not clear if new hearings noted the " breakdown" in time important constderation when 5ee ZIMMER, Pose i differences of opinion as to the ;
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, gewer station-would delay completion of the quellty masurance l'rogram at the board makes its decision.
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n UNITED STATES OF AMERICA 000(ETEr.
NUCLEAR REGULATORY COMMISSION USilRC ~
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-2 /19 :.2 ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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UFF!cF or sg,;7;t,,
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MWE1?!G & SEid, i,'t Cincinnati Gas & Electric
)
URAtlCH Company, et al.
)
Docket No. 50-358 (Wm.
H. Zimmer Nuclear Power...
)
)
Station, Unit 1)
)
)
AFFIDAVIT OF Stephen Schumacher 1.
My name is Stephen Schgacherand.
I.' live at 1+63 Warner Avenue Cincinnati, Ohio.
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$s I
2.
I am a charter member of the Miami Valley Power Project ("MVPP").
As a member of MVPP I hereby
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authorize MVPP to repre'sent my_ interests as an interven'or in the abovecaptioned, reopened Zimmer licensing i
hearings.
1 I
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Stephen Schumacher Truste.e
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0 DW!D A. KON2RMW Notary P :t!*c. State of CMo My Com ah.tcr. Expres Mar. 23. Oss O
9 1
l
r CERTIFICATE OF SERVICE I hereby certf y that copies of the foregoing Affidavit Submitted by Intervenor MVPP has been served upon the following by mailing copies first class, postage prepaid, this 30th day of July 1982:
- John H. Frye,III, Chairman Andrew B. Dennison, Esquine Administrative Judge 200 Main Street Atomic Safety and Licensing Board Batavia, Ohio 4 5103 U.S. Nuclear Regulatory Commission Mr. Samuel H.
Porter
- Dr. Frank F.
Hooper Porter, Wright, Morris &
l Sierra Nevada Aquatic Research-Arthur Laboratory 37 West Board Street Route 1 Columbux, Ohio 43215 Box 198 Mammoth Lakes, Ca. 93546 Deborah Webb, Esquire 7967 Alexandria Pike
- Dr. M. Stanley Livingston Alexandria, Ky. 41000 Administrative Judge 1005 Calle Largo Lawrence R.
Fisse,' Esquire Santa Fe, New Mexico 87501 Assistant Prosecuting Atty.
462 Main-Street Troy B. Conner, Esquire'~
Batavia, Ohio 45103.,
Conner & Wetterhahn 1747 Pennsylvania Avenue, N.W.
W. Peter Heile, Esquire Washington, D.C.
20006 Assistant City Solicitor Room 214, City Hall John D. Wo' liver,' Esquire Cincinnati 7 Ohio 45220 Legal Aid Society Atomic Safety and Licensing P.O. Box #47 550 Kilgore Street Board Panel Batavia, Ohio 45103' U.S. Nuclear Regulatory Commission Timothy S.
Hogan, Jr.
Washington, D.C.
20555 Chairman, Board of Commissioners Atomic Safety and Licensing 50 Market Street Clermont County Appeal Board Batavia, Ohio 45103 U.S. Nuclear Regulatory Commission William J. Moran, Esquire Washington, D.C. 20555 General Counsel Atomic Safety and Cincinnati Gas & Electric Co.
P.O. Box 960 Docketing and Service Sectiot Cincinnati, Ohio 45201 Office of the Seceetary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 O
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David Martin, Esquire Capital Building Room 18 Frankfort, Ky. 40601 Brian Cassidy, Esquire Regional Counsel FEMA REGION 1 SW McCormack POCH Boston, Massachusetts 02109 Vernon Adler FEMA
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500 C Streetr S.W; -
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Washington, D.C.
20472
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- Stuart A. Treby Office of the Executive Legal '--
Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 A { W_
L Lynne ernabei
- Delivered through NRC Ma}i
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l Delivered by Express Mail.__
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