ML20063A619

Comments Opposing Immediate Effectiveness of ASLB 820727 Partial Initial Decision on Cheating.Reaffirms Request for Stay of 810827 Partial Initial Decision & Requests Stay of 820727 Decision

ML20063A619
Person / Time
Site:	Three Mile Island
Issue date:	08/20/1982
From:	Bradford L THREE MILE ISLAND ALERT
To:
References
NUDOCS 8208240417
Download: ML20063A619 (21)

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UNITED STATES OP AMElt1CA DC['

[ 3NTED N UC LE Alt itEGULATORY COMMISSION BEFORE Till. COMMISSION 9

In the Matter of )

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METROPOLITAN EDISON CO"PANY ) Docket No. 50-289

)

(Three Mile Island Nuclear )

Station, Unit 1) )

TMIA COMMENTS ON IMMEDIATE EFFECTIVENESS OP PARTI AL INITIAL DECISION (RPOPENED PROCEEDING) s I. INTRODUCTION _

On September 11. 1981, TMTA requested the Commission to stay the immediate e t feet ivenev of t.h e Atomic Safet.y and Licensing Board (the Board)'s partial initial decision on management issues dated August 27, 1981 14 NIM' 1221 (PlD). After issuance of this PID, the Board reopened the hea r i ng:, t.o examine further management issues, resulting in a supplemental PID dated July 27, 1982. Based on the supplemental PID, TMIA reaffirms i te request for a stay of the immediate offectiveness of t.h e August 27, 1981 PID, and additionally requests a stay of the inuned ia te effect_ivene w of t.he July 27, 1982 PID for the reasons stated below.

11. STANDARDS FOR ASSESSMENT OF STAY REQUEST In its Memorandum in Support of Request for Stay Pending Administrative Review, dated September 11, 19f1 , TMIA outlined the standard by which the Commission should evaluate a stay reques&. Under 10 CPR S2.764, the Commission shall order a stay "if it dete rmi.nes that it is in the public's interest to do so, based on a consideration

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• O of the gravity of the substantive issue, a likelihood that it has been resolvedincorrectly below, the degree to which correct reso-lution of the issue will be prejudiced by operation pending review, and other relevant public interest factors." TMIA incorporates the reasons presented in its Septmeber 11, 1981 memorandum, as they are still pertinent. But in addition, the Commission should recognize that the substantive issue has become substantially more serious based on the evidence presented in the reopened proceedings. This evidence, and the findings of the Special Master who presided over the hearings, compel the conclusion that Licensee's post-accident training and testing program can not be relied upon to insure that TMI-l can be operat ud sa fety. The evidence demonstrated not only that post-accident cheating was widespread at TMI, but also that operator training at TMI has enormous deficiencies, that the Licensee has not learned from its past mistakes, and continues to instill an attitude within the entire oprations staff of disrespect for the training and testing program, and for the entire NRC regulatory process. The evidence is quite clear that the conditions set out in the Commission's August 9, 1979 Order, CLI-79-9, 10 NRC 141, have not been met, and can not permit a finding of reasonable assurance that TMI-l could be safely operated.

In addition, the July 27, 1982 PID is fraught with major errors, making it even less likely that the Board's decision supporting restart could withstand appellate scrutiny. These errors are dis-cussed below.

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I IT. Tile BOAPD'S REVERSAL OF THE SPECIAL MASTER'S FINDINGS ,

In determining whether this decision would withstand appellate scrutiny, the primary issue to consider is whether the finding  ;

and conclusions are supported by substantial evidence. 5 USC S556 (d),

Universal Camera Corporation v. National Labor Relation Board, t

340 US 474 (1951); Rivas v. Weinberger, 475 F.2d 255 (5th Cir, 1973);

i Madiak v. C.A.B., 305 P.2d 588(5th Cir., 1962); Willaport l Oysters, Inc. V. Ewing, 174 P.2d 676 (9th Cir., 1949); Culcahy Packing Co., v. N.L.R.B., 116 F.2d 369 (8th Cir., 1940). In making this determination, this Commission, as a reviewing body, must consider not only the record itself, but also the report of the Special Master, which the Board renounces on a number of issues.

TMIA recognizes that, as in most administrative proceedings, the findings of a trial examiner, or special master in this case, are not binding on the agency. However, it is a well established principle of administrative law that the findings and conclusions of the judge who presided over the adiministrative hearings may not be ignored, and "the evidence supporting a conclusion may be less substantial when an impartial, experienced oxaminer who has observed the witnesses and lived with the case has drawn conclusionsdifferent from the Board's than when he has reached the same conclusions.

Universal Camera, Inc, supra., at 496.

The law supporting this basic administrative las principle is even stronger when the hearing judge's findings rest directly on his own personal observation of a witness's demeanor. In such a case, findings and conclusions reversing the Special Master become significantly less substantial, or " tenuous at best." Ward v. N.L.R.B.,

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462 F.2d 8, 12 (5th Cir., ]972); Loomis Courier Service, Inc. v.

N.L.R.B., 595 F.2d 491 (9th Cir., 1979); Omni International Hotels v.

N.L.R.B., 606 F.2d 570 (5th Cir., 1979); Henley V. U.S., 379 F.Supp.

1044 (M.D. Pa., 1974); Dolan V. Celebrezze, 381 F.2d 231 (2d Cir., ,;

1967). .

In this case, the Board reverses a. number of Judge Milhollin's findings and conclusions, particularly those which are damaging to i

the Licensee, and which could not be " sed to support a restart decision. Many of these findings turn directly on witness credi-i bility, or concern issues which Judge Milhollin has particular ,

expertise in evaluating.

The irony is that the Board itself selected Judge Milhollin to preside over the reopened proceedings because of their "inforraed confidence i.n hi:, ability and fairness," and because of his expe r ti se in the field of education and examination at high acadelaic levels. The Beard even recognizes the thoroughness, and careful reasoning and documentation of the Special Master's Report (SMR) . 12034. Apart from the purely legal considerations, common sense would dictate that Judge Milhollin's expertise in the fields of education and examination, and nuclear regulation make him more competent than the Board in assessing the evidence.

But in addition, Judge Milhollin did not utilize his expertise as a mere reviewer of the printed evidence. Judge Milhollin presided over the hearings, took an active role in examining the witnesses, and observed witness demeanor. Ile heard a number of witnesses directly contradict each other under oath, and thus was forced to make a number of credibility determination in his findings.

The Board, however, reversed a number of Judge Milhollin's i

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1 credibility findings, changing major conclusions. Two instances stand out.

One concerned the Special Master's finding that Mr. Michael Ross, TMI-l Manager of Operations,had deliberately kept an NRC '

proctor out of the exam room during the April 1981 NRC exam, and  ;

improperly broadened or attempted to broaden the answer keys to make grading more lenient on particular questions. Mr. Ross had already been characterized by the Board as perhaps the most important person of the TMI-l operatingteam with respect to public health and sa fe ty. t 2192. The other instance concerned the Special M 4ter's finding that Mr. Ilus ted , a TMI training instructor, solicited Mr. P, a shift supervisor, for an answer during the same April NRC exam. Training instructors , of course, have more impact on operator attitude toward the training and testing progrmu than perhaps any other individual at the plant. The implications of the Special Master 's findings on these two issues are obviously enormous. The Board reverses Judge Milhollin's findings, concluding that Rons committed no wrongdoing, and that lius ted d i.d not solicit P. The Board finds Husted competent to continue instructing, despite its own conclusion that "Mr. Husted refused to cooperate with the NRC investigators..*. and later when he provided some information, he continued to withhold information within his knowledge and he provided an incredibly inconsistent account of his reasons during the hearing. t 2165.

With regard to Mr. Ross, TMT A agrees entirely with Judge Milholl in' .; ,

analysis in the SMR, 1137-178. IIis findings are based substantially upon an evaluation of the credibility of the witnesses who testified, particularly Ross and Mr. YY. The facts are as follow: Ross

- , . 1 participated in a review of test questions and proposed answer .

keys with the NRC. proctor and two trainig instructors, during the "B" set'of NRC exams on April 23 and 24, 1981. The utility I officials had all taken the "A" set of exams on April 21 and 22, 1981-thus, all were license candidates. A number of current operators, Ross' subordinates, testified that sometime during or after the two day review, Ross participted in a conversation with them,-saying such things as " don't worry, you did all right." or "I took care of that job," after which everyone " chuckled." SMR, t 143. These operators testified that they thought Ross intended to cheer them up, or express merely that he made the answers more " fair." Mr. YY, however, heard the same conversation. YY is no longer employed at TMI. Ile testified, unequivocally and in contradiction to the Board's analysis in t 2201, that based on his knowledge of Ross, he believed Ross meant that he had kept the proctor out of the room to facilitate cheating. Tr. 26,015, 26, 016. (YY).

Unlike the Board, Judge Milhollin had the unique opportunity t6 observe Mr. Ross's demeanor as a witness standing accused of gross and improper conduct. Judge Milhollin also had a chance to assess Ross's credibility in the context of other witness' testimony on the same subject, including that of YY, Mr. Bruce Wilson (tna proctor) , Mr. Ross's subordinates who would very understandably not wish to " point the finger" at their boss (using the Board's own words in i 2043), and other Licensee employees.

On this basis, and by thoroughly analyzing the entire evidentiary record, Judge Milhollin reached his conclusions, finding, among other things that Ross was a totally non-credible witness. SMR, t 147.

The Board asserts no reasonable basis to support its conclusion i

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that Ross's testimony should be considered credible. tt 2208, 2209.

Ross had a tremendously strong motive for giving false testimony '

on this point. But the Board, for example, fails to conclude that he knew the exam room was unproctored. Yet, he was situated in a room right next to the exam room so that he could see that the exam room was unproctored, whether or not one can reasonably infer he knew from the proctor himself, with whom he was working, that '

the loom was unproctored.

Judge Milhollin also found that YY's testimony was honest and '

forthright. Yet the Board, who never observed YY's demeanor, finds '

has accusations noncredible, contradictory, and unreliable. t 2205. '

To buttress its argument, the Board misconstrues much of YY's ,

testimony. For example, the Board in i 2203 says that YY "seems to ntate that any unfair dvantage to the test candidates was an incidental result of normal procedures." To the contrary, YY t never said that he believed improperly broadening answer keys was

" normal." Further, the Board does not support its assertions with evidence of malice by YY towards Ross, or any reason why YY would not be truthful. In fact, YY's credibility is strengthened when one considers the risks YY took by voluntarily contacting the r NRC when he did, and the personal jeopardy he has been in since the initial call, evidenced by his insistence on total confidentiality.

Judge Milhollin's analysis speaks for itself. The Board fails to 1 give an adequate explanation of the grounds for reversing his l credibility determinations. General Dynamics Corporation, Quincy Shipbuilding Division v. Occupational Safety and Health Review Commisssion, 599 F.2d 453 (1st Cir., 1979).

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. I In addition, while the Board recognizes the possibility that Ross could have been bragging to his subordinates that he had broadered the answer keys, % 2201, 2202, it fails to discuss the evidence on that issue,as if bragging could be considered acceptable behavior. The Board fails to consider the implications of the highest level management official inside the plant, untruthfully bragging to his subordinates that he had engaged in wrongdoing. At the very least, this is hardly an attitude which would encourage respect for the company's training and testing program, let alone what it says about Ross' integrity.

Similarly, the Board's dismissal of the alleged solicitation of P hy llusted during the April NRC exam, in a 507, unproctored room in which they sat alone, is equally unsupported by the facts which turn di rectly on credibility evaluations. The evidence revealu that two highly professional and totally credible NRC investigators, Messrs. Ward and Baci, were told by P during the NRC's investigation, that llusted solicited him. Both Ward and Baci appeared at the hearings, and Ward recited the events as they happened. Baci disagreed with none of Ward's testimony.

Ward had concluded that P was forthright at the time, based on P's demeanor. Tr. 25,320 (Ward).

But P changed his story during the hearings, and denied not only that the solicitation occurred, but also that he ever told this to the NRC investigators. Tr. 26,691-2 (P). Judge Milhollin does extensive analysis of P's credibility, includingobservations of P's demeanor, and finds that P was not forthright in his testimony.

Ilus ted , who denies the solicitation, is found by Judge Milhollin f

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and by the Board to be entirely noncredible and uncooperative. t 2165. But the Board refuses to even consider P's or Husted's credibility with regard to this incident. t 2158.

Moreover, the Board concludes that Mr. Ward's story is un-corroborated and entitled to no weight, since Mr. Baci, who sat beside him at the hearing, did not speak on this issue. 55 2153, 2154. This is absurd. The Board provides absolutely no explanation why a credible investigator like Mr. Baci would sit in silence beside another investigator as he testifies falsely about an incident involving both of them. The Board completely fails to disclose the factual basis for th i : conclusion, violating the prin-i ciples of S.E.C. 9 Chenery Corporation, 318 US 80 (1943). The Board grossly errs in finding Mr. Ward's testimony uncorroborated.

Whilo Mr. Ward's testimony is technically hearsay, it is well established in admi nist rative proceedings that hearsay can be l

l accepted as reliable, probative evidence if other better evidence l

I in unavailable. Willaport Oysters, Inc., supra ; N.L.R.B. v.

Service Wool IIeel Co., 124 P.2d 470 (1st Cir., 1941), N.L.R.B. v.

Remington Rand, 94 F.2d 862, (2d Cir., 1938). Both P and Ilusted are non-credible witnesses.  !!usted in particular has evidenced such complete dis:espect for the NUC regulatory process that the Board concludes, "his attitude may be a partial explanation of why there was disrespect for the training program and the examinations."

t 2167. In such a circumstance, it is clear that Mr. Ward's testi-mony should be accepted and the slate should not be wiped clean for P and tir. Il us ted . t2157.

Thus, Judge Milhollin's findings on both these issues depend heavily upon credibility determinations. The Board arbitrarily reverses these findings, and does not provide adequate, independent

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reasons for doi.ng so. It is highly likely that upon review, the dica rd ' s findings will be rejected, implicating both these management officials in serious misconduct.

III. Tile BOARD DRAWS ARBITRARY AND CAPRICIOUS CONCLUSIONS As in the first management PID, the Board decision contains many conclusions which are arbitrary and capricious and thus will not withstand appellate scrutiny. Helvering v. Taylor, 293 US 507 (19 35) .

The Board consistently fails to discuss pertinent evidence on salient issues, maken arbitrary findings which are contrary to the evidence in the record or which rely on irrelevant evidence, or fails to draw reasonable inferences from facts contained in the 4

record.

For example, the Board concludes that G and H, who engaged in widesproad cheating on weekly quizzes, do not have a poor under-standing of the course material and thus, their competence as The Board citesno evidence operators in not a problem.

t 2119.

to support this conclusion, and entirely ignores the evidence in the record and detailed analysis by Judge Milhollin proving that '

indeed, G and 11 both have a terribly poor understanding of the 242-245.

course material. See, for example, SMR,

't The Board recognizes cooperation by individuals W and CG on one of the individuals caught a weekly quiz, but in fe rs that W, cheating on the April NRC exam, copied from operator GG and thus t 2135. The Board does not finds CG's conduct " understandable."

and i. n fact, the record ,

support th i.n inference with any evidence, 1 Lic.Ex. 661,66m show that the l suggests the opposite conclusion. l first word of one of GG's responses was crossed-out before the

answer was given while the same was not true for W. Tr. 24,569 (Wilson). In addition, F. who is no longer with the company and already admitted to cooperating with o on the April exam and on ot'ner weekly quizzes, Tr. 26,099, 26,153 (W), denied copying from GG. Tr. 26, 14 5-6 (W) .

I Much of the evidence developed at the heari ngs concerned rumors of cheating. The Board's use of rumor evidence is entirely inconsistent. For example, the Board relies on rumor evidence to support a major conclusion that most or all instances of cheating have been revealed, suggesting that actual instances of cheating were 1ikely reported as rumors. This was so company witnesses could avoid pointing " accusing fingers at each other."

2043. In other words, the Board suggests that rumors in fact identify actual events. But when the Board actually discusses these rumors, it finds them " entirely unreliable and the worst type of hearsay," i 2172, and refuses to attach any evidentiary weight I

whatsoever to cheatinq rumors regarding Mr. U- the individual around whom most cheating rumors revealed during these proceedings centered. This inconsistency is wholly arbitrary. l Allegationn against Mr. U concerned not only rumor testimony, however. The highly credible witness, Mr. 00, testified that U approached him outside the exam room with an implicit offer of help during the April IIRC exam, t 2177. The Board contradicts Judge I;ilhollin and refuses to find that U did this, based on Mr. OO's "uubj ective interpret at ion of U'u unstated purpose." 12177. But the Board fails to discuss an overwhelming amount of ,

circumstantial evidence which supports OO's story. For example, a number of operators testified that they heard that U was stationed f

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Outside the exam room to perform this very function. Tr. 26,534 (1); l' r . 26,486-7 (FH); Tr. 2fi,217-10 (O) ; Tr. 26,163-8 (W).

U clayed in the vicinity of the exam room- he says to study for an oral exam given months later. But other operators testified that they couldn't irr,-ine doing this after experiencing two grueling days of written exams, auch as those U had inst taken. Tr.

25, 713 (GG) ; Tr. 25,771 (G). O himsell faile to deny that he may have provided an answer .n this raanner- but the Board gives U'r non-donial /irtually no weicht, mentioning it only as an after thought in '. 2178. The naard'n analysis of the evidence on this innue in completely a rbi t ra ry.

The Boa rd s t a t ec. , wit hout any nupport and of course without ever having observed any of the witnesses, that the testimony of the operators was thorough and that they performed well.

This conclusion i:, directly contradicted by numerous examples in the record, and in fact, Judge Milholli_n found that the following operators gave weak or noncredible testimony: A,

• 24; G and H,

, 205, 215 ; I, *: 24; P, '

. 107; U, '

119, 122; and GG, *: 93.

A highly nignificant issue which the Hoard treats in a wholly arbitrary and capricious mannet, concerns the cheaLing incident in 1979 where Unit 2 Superv: 90r of Operations, Mr. VV, turned in Mr. O's work, in Mr. O's handwriting, as his own on a license requalifiratinn oxam. VV had a long history of poor training performance and disrespect for the traininq and testino p ro o r a n. a t. Tnt. (ft ;houl.! I, notmi that I teensen , to this day, refuson to characteriz- VV'- behavior au cheat inq, and while the Board find this " h i gh l y d i. u t u rb i n g ',' it attachec no significance to it '

. 229H, footnote 246). Certainly, the incident was an early P

i indication of the need for better procedures and a be t te r a t ti-t.ude toward te: tiny, and nhoul's ifave been used by managerent a: -

I an e.. ample to show itu intolerance for this type of I behavior.

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The issue concerns whether VV was disciplined and i f so, how I widely known such discipline was within the operation staff.

A:: GPil Nuclear President Robert Arnold himself stated in testimony, discipline should instruct the individual and instruct the organization. SMR, *,

231. However, the evidence revealed that in fact, although Mr. VV was reassigned to another position around that time, the move was not disciplinary or even connected with his performance in the training program, that VV himself was not told he was being disciplined and considered the move a l a f.o ra l transfir, and that t.h e incident was not common knowledge among the ifn i t I ope ra t i on e, :t af f. ':MR ,

• 23?. In contradiction to all the ovi d< nce in the rccord, and with no factual support wha t soeve r , the Board concludes "it is likely that most of VV's peers in middlo management saw his reassignment as a demotion, or at least as an impediment to advancerren t . " * , 27d4. (The Board's te rm " middle ranagement" in undefinedl. Further, the Board seems to i

balio"e in any event, VV should not have been demoted or punished, since he sould h a vi - been humiliateJ and besides, his " skills and e<perience were orely nooded."

• 22R5, 2286. Again, the Board provides no inpport for thin arbi t rary and inappropriate conclusion, and in fact, i t. qtepr beyond 1.icensee's own a.3nertions.

Perhaps even more significant to this entire inquiry is that the company made a material false statement to the NRC in

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certifying VV for license renewal, knowing that O's improper assistance contributed to completion of VV's requalification proqram.

2287 This, or course, had b< en covered-up b', the Licensee, and in fact, Mr. Arnold ;tated that he may not have mentioned the ontiro VV/O incident at all, had it not involved Mr. O who was alrea+ implicat"d in the ly .r i l 19H1 incident. Tr. 23,870. (Arnold).

Forth<r, the hizn m e la u, nit se r admitted ihat a material false

.; t a te:v :n t war .'.'n made. Yet ;omehow, th< hard reliec on this incident to .upport a conclusion th a t the Licensen has succeeded in ita e f fo r t ., to make a full disclosure on all matters of possible relevance to the cheating incidnett. ' 2050.

The Board's analysis makes no sense.

Anoth r major i:mue, that of manaqemont's constraints on the N Pt ' i nve ;t iga t-ion, revolved around management's insistence that it <; i t in on the NRC's interviews of operators during the cheating invo*;t iga t ion . TMIA has maintained that the Licensee's motivation wa: not n healthy desire to stay on top of things, but rather a de <; i r e t.o maintain some measure of control over tho unfolding e ve n t :; , which directly involved managements's possible wrongdoing.

While the investigators felt that management's presence was an inhibiting factor, it was not unti1 the second investigation that they wero a!>1e to keep management out. The Board cites Licensee's unreliable, self-serving statement that the company did not intend to constrain the NRC'; investigation,

2230, that the company pract.ically had a " duty" to ; i t. In on the intor"iews, '

2232, and incorrectly states that Judge Milhollin did not find that the NRC inve<;tigation w m act ually constrained, 2231. In fact, Judge Milhollit, concluded the opposite. cMR,

• 291. Tho Board then arbi t rari l' dismi o, t ht entire issur at "wi t ho':t important

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<;ign i fi cance ,"

• 2231. The 130a rd ' s analysis ignores the evidence, common sense, and the well-reaconed analysis by the Special f* aster on t h.i n innue.

The record is replete ';ith many other examples where the Board drm" a rbi t ra r y conc l u:; ion "n ainnor t esi by the record and i.n contradiction to extennive, expert analynit by Judge Milhollin.

Other " camp l c" includo. their ro'asal to find a failure of inst ra f t inn a t. 'MI, ith .t ;upportinq anal,.ia, in the face of ovorwh 1minq direct e fidac - to th" contrary. '

2337; H v. R , '238-251; aat is t oct inn 'lithin the current Cat-T, or lessons learned prog ram, i a nt. i t u t "' a a renponse to the Commission's August 9, 1979 Order, despite orerator i e s t i r>ony that instructors still taught the cour' by force f,ediaq answers and encouraging rote n'emori-ration, Tr. 25,483 (00) ; Jr. 25, 905 (II).

The Board also makes a number of blatant statements which are n o t. only unnup: orted bs the r' cord, but are made without any explanati.on in the decision itselt. These include, "it seems that the rumorr heard by 00 fell into the cracks during the co:npany invest i ga tion , " '

2261; " Licenser could cearcely afford to waste time in o rg an i v. i ng i t.s i nves t. i q a t i on , "

• 2266; "We trust... that the VV incident wa: an anomaly and that the present management .t TMI-l would not condone the procedure involved in that incid at."

2351. The list is e nd lo :,s . The Board's treatment of all these issuen 1: entirely inadequate, ard the Commission must recognize no t- only that t hi- 14o a r<!' s arbittary findinos and conclun i o ns will not be upheld on appeal, but that rho evidonce voveals severe probb r r"spect inq manag or:en t at ti tude and integrity, and respectino the quality ot Li c,in see ' n current training and testinq program.

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IV. Till: B( > A R D ' i, D!: C I S I O N IS INADEUUATE Tt) SUPPn?T RESTART UNDER Pile COMMISS inn ' ', AUGt:ST 9, 1979 ORDEP, 10 N !< C 141 The op 3ra t i n r 1icense of t.h i s company wa: nunpended in 1979 upon a de t "rmi na t i on l ej this Ccmmi: .;i o n that there was no reasonable in cu rance TM1-1 could 1e operated nafely. It determined that, at lea;t, a number of short term actions had to be completed beforo any re uart of Unit. I would be cor.s i de red . The Commission e ;tablish< d the Atomic Safet:v and I,i cens ing Board to conduct an adjudicatory hearinq to decide if ;uch actionn had been completed

'atinfactorily t.o p rov ide annurance that rentartinu Unit 1 would pose no t.hreat to the public health and ;a f e ty . But in light of this last PID, it is quite evident that the Board did not properly pe r f orm its function, violat.ed the trust of the public and the Commi: ; ion, and produced a decision so poor that allowing restart merely on the st.tength of it wo u lci r !. # irreparable iniury to the public.

TMTA has already d incu ; sed a number of gress errors in the Boa r<i' > decision. But in addition, the Hoard refunid to make co n c l u. . i v< - de t < i ni na t i rin: on major ,a t e t.y iten: , because, it nays,

_i t d;d not re t a i n t'o jurindiction given to it b3 the Commission atter i: no- <d it- i  ;.t.

PID. .i: iuri sd i .:t iona l itsuo arose a numin r of f i mo' in th, .tuly 27, 198:' PID, concerning ;uch ;a f e ty-relat "! i. ur- , a:  ?. h < < - ob : t in t. i s , cont < :1. of the *:!v: e:him . '2074, 2 %6 i' h Boa rt! i: ::l ai n l , wrong. It <peciticalli le f t. opun a number of f i nili ng: doaling with t he a. - i: ;ue <, contained in the first PlD, p' n li ng the ou t co:"e of the;o pr oc ee ling: e footnoten 18-24, PID of Augu ;t '<, 1931. Ju bp- "ill. ,llin lid o :lensive analysis in this area, concluding t!'at exann v. e r e wak in <ontent, did not te ;t operatorn on what tho nee <hmi to k iow to afely operate a nuclear I

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I power plant, particularly in light of TMI-2 lessons learned, and could be de feated not merely by cheat ing , but by rote memorization.

The Commis<; ion can not close its oyet to this evidence. If the Board doe <> not believe it has jurisdiction over these issues, then the Commission can not, in the face caf overwhelming evidence of major problera in the substantive quality of Licensee's training and testing program, rely on this decision to provide reasonable assurance of safety.

Also, the Commission abould use its common conse in evaluating the differences between the SMR and the PID. Judge Milhollin brought to the hearings expertise and fairnesu. !!e lived with the case and had a feel for it. Ile raised and discussed issues such as ;taff attitude, which the Board never even recognizes, P!'" 282-284. He determined that a number of people lied under oath.

He used his expertise to do extensive analysis on test questions and answers. Admittedly the Board had no expertise in this area, but instead of adopting Judge Milhollin's analysis and conclusions, it draws weak conclusions, stating "we aro not in a position to judge." '

, 2367, 2370, 2372. Then what was the rurpose of appointing Judge Milhol1in?

The Commission should also recognize, upon reading this PID, i

th a t the Board conaistently looks for and finds ridiculous excuses l tor I.icensee'<, wrongdoinq or incompetence, and in those rare instances whore it can not find excuses for them, it supports restart anyway.

I'o r e,: ample , the Board excuses the Licensee in its support of an nutrageously poor company investigation into cheating, due to the company's " naivete".

• 2042. The Board also excuses the overall

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integrity of the operations staff, found to bo inadequate by Judge Milhollin, because cheating evidence on the other 30-40 operators was not produced at the hearings. t 2043.

The Board had no confidence that the Licensee could discipline G and 11 in an administratively acceptable manner, 12117, because Licensee still refuses to admit that G and 11 cheated. .Although the Board itself" questions the logic of that stand," it excuses Licensee because its belief is sincere. t 2057 The Board excuses the development of widespread cheating at TMI, because management just did not think to guard against it,

$2063, due to their own naivete. t2064,2065, 2066.

l The Board also excuses Licensee management for causing or l

crea ting an atmosphere where cheating occurred, because they made an unusually open and candid acknowledgment of its responsibility and fault for cheating." t 2063. It is interesting to note the Board's recognition that such open ass and candidness is unusual for this Licensee. The Board then uses the Licensee's admission as the foundation for its conclusion that things will be " accept-able" in the future. That Licensee admits these things now, in the face of overwhelming evidence, is hardly significant. Rather, the Board and the Commission should took to the past, when management must have known of the widespread disrespect for the NRC exam and the training program, yet permitted it to continue. This Licensee chose to run its training department in this manner, despite its obligation to the Commission and the public. That they now take responsibility is no excuse.

The Board finds that Mr. Ilusted may remain as a training i

instructor, despite their doubt whether he is able, or if able, l

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willing, to impart a sense of seriousness and responsibility to the TMI-l operators, $2167, merely, it seems , because his technical competence has not been questioned, t2168. Thir, example is illustrative of a consistent reluctance by the Board to remove a technically competent individual from a safety-related position, de spi te a history of poor ethical judgements or lack of candor.

t 2119 (G and II) , t 2135 (GG) ; t 2144-45 (Shipman); $ 2285 (VV).

Perhaps the grossest example of this is the Board's failure to remove Gary Miller from his position as Director of GPU's Start-Up and Test Division, despite its own conclusion that Miller, with the concurrence of Met-Ed Vice-President John lle rbe i n , and probably other senior TMI executives, made a material false s ta temen t to the NRC. Gary Miller was Emergency Director during the TMI-2 accident. Both he and !!erbein, who was just recently r. moved as GPU's Vice-President for Nuclear Assurance, have been charged by a number of investigations for deliberately withholding vital information f rom State and Federal officials during the accident. Even the Board, which had previously exonerated these two individuals in its discussion of management's response to the accident in the August 27, 1981 PID, now recognizes problems with Miller's " ethical judgement." The Board recommends further inventiqat. ion related not only to his material false statement, but also to his actions during the accident. '* .- 2317, 2318.

The Board concluded that Miller and lierbein, acting on behalf of and with the support of the Licensee, committed at least two eriminal offenses. They violated 18 USC S1001, which forbids making material false statements to government agencies, and l

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18 USC S 371, the conspiracy statute. The Board's recommen-dation of further NRC investigation of this incident is pointless.

The case should be referred immediately to the Department of Justice. Moreover, the Board's suggestion that Unit 1 be restarted with Gary Miller in such a highly critical and safety-related position, is an outrage, and a clear violation of its responsi-bility.

Finally, the Board found that Dr. Robert Long, then Director of Training and Education at GPU, misled the Board in testimony during the main restart proceeding regarding written training procedures which were seriously deficient. Dr. Long testified that a change in procedure had been made. In fact, ao change had not been implemented, and the Board would not have dis-covered that fact had it not been for the reopened proceedings.

This failure tu .smply with itn own procedures is an example of a blatant lack of concern for safety-related practices by Licensee's training department. In addition, the Board found that Licensee's training department failed to implement a quality assurance and quality control program, $2070, and that "i f' the Licensee does not i tsel f exercise the requisite quality control, quality assur-ance and feed-back mechanisms to assure high-quality training and testing, it in beyond the power of regulatcrs and regulations to

put ar. appropriate program in place."

i These findings, plus those already discussed, compel the conclusion that the training department t

is not now adequate,and does not meet the criteria of the August 9, 1979 Ordet. Directing restart under any condition is inappropriate.

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V. CONCLUSION For the above-stated reasons, we request that a stay be granted to protect the public health and safety until these issues can be properly resolved through the appeal process.

We further reinterate our request that the Commission exercise its option to review the merits of these particular issues, pursuant to 10 CFR S 2,764.

Respectfully submitted, i

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i,l 3 Dated: August 20, 1982 i \f~r < a ?

Louise A }) Y n x shy,g.

Bradford, TMIA $

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