ML20065J848
| ML20065J848 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 09/30/1982 |
| From: | Adler R PENNSYLVANIA, COMMONWEALTH OF |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8210060218 | |
| Download: ML20065J848 (45) | |
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(:, f,1%! 't-06CMEigd GETED STATES OF Nm USNRC NUCEAR REGUIATOIN 03fiISSION
'62 b6T -5 P'ud BEFOPE DE ATOEC SAFEIY AND LICENSING APPEAL BOARD In the Matter of:
IETROPOLITAN EDISW 021PANY, (Three Mi.le Island Nuclear Docket Ib. 50-289 Station, thit Ib.1)
(Restart)
O@t0tMEALDI 0F PENNSYLVANIA'S BRIEF IN SUPP0lE OF EXCEPTIONS TO DE ATGEC SAFETY AND LICENSING BOARD PARTIAL INITIAL IECISION DATED JULY 27, 1982 (REDPENED PROCEEDING - OPERATOR GEATING)
DOUGLAS R. BLAZEY Chief Counsel ROBERT W. ADER Assistant Counsel 505 Executive House P.O. Box 2357 Harrisburg, Pennsylvania 17120 Telephone:
(717) 787-7060 Septanber 30, 1982 IS210060218 820930 i'
i:PDR ADOCK 05000289
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TABE OF 00RIENTS P_a.ge Table of Authorities...............................................
11 Statement of Questions Presented...................................
1 Statement of the Case..............................................
2 A.
Indivia ml Operators.....................................
6 1.
G and H.............................................
6 2.
DD (Mr. Husted).....................................
8 B.
Licensee's Training Program.............................
10 Argunent...........................................................
13 I.
'IEE APPEAL BOARD SHOULD SUBSTITUIE ITS DISCRETION FDR THAT OF THE LICENSING BOARD WHERE AN IMPORTANT PUBLIC POLICY IS AT STAKE.......................................
13 II.
INDIVIDUALS WHO IACK THE REQUISITE INIEGRITY 10 PEREDRM THEIR DUTIES SAFELY SHOULD N0r BE PERMITIED TO OPERATE
'IMI-1....................................................
16 A.
The Integrity Of Reactor Operators Is Critical To Nuclear Safety...................................
16 B.
Lack of Operator Integrity Is An Appropriate Basis For The Ommission To Revoke Or Suspend Operator's Licenses..................................
20 C.
The Licensing Board Abused Its Discretion By Permitting The Licensee To Use G, H, And Mr. Husted To Operate IME-1 And To Instruct Other Operators.....................................
26 1.
G and H........................................
27 2.
DD (Mr. Husted)................................
31 i
III. LICENSEE'S TRAINING INSTRUCIORS MUST BE u.Kunt.u AS QUALIFIED PRIOR TO RESTART...............................
34 IV.
C0NCWSION...............................................
37 i
I
s o.
TABIE OF AUIHORITIES Judicial Proceedings Page(s)
Cities of Statesville, et al. v. Atomic Energy Comission, 441 F.2d 962 (D.C. Cir.
1969)..................................
21 Cobb v. National Traffic Safety Board, 572 F.2d 202 (9th Cir. 1977).
25 Cowell v. National Transportation Safety Board, 612 F.2d 505 (10th Cir.
1980)..................................
24 Doe v. Department of Transportation, Federal Aviation Administration, 412 F.2d 674 (8th Cir.
1969)...................
23 Garber v. Civil Aeronautics Board, 276 F.2d 321 (2d Cir. 1960)......
23 Haines v. Department of Transportation, 449 F. 2d 1073 (D. C. Cir. 1971).................................
25 Hamlin Testing labs, Inc. v. U.S. Atomic Energy Conmission, 357 F.2d 632 (6th Cir.
1966)...................................
18 Hard v. Civil Aeronautics Board, 248 F.2d 761 (7th Cir. 1957).......
22, 23, 24 25, 27 Power Reactor Development Corp. v. International Union of Electric, Radio and Machine Workers, AFL-CIO, 367 U.S. 396 (1961)........
19, 23 Sabinske v. Civil Aebx1autics Board, 346 F.2d 142 (5th Cir.1965)...
30 Somlo v. Civil Aeronautics Board, 367 F 2d 791 (7th Cir.1966)......
24, 27 United States v. Wiesenfeld Warehouse Co., 376 U.S. 86 (1964).......
19 Virginia Electric Power Co. v. U.S. Nuclear Regulatory Comission, 571 F.2d 1289 (4th Cir.
1978)..................................
19, 20 Walker v. C.A.B., 251 F.2d 954 (2d Cir.
1958).......................
24 Nuclear Regulatory Conmission Proceedings Matter of Advance Industrial X-Ray Laboratories, 1 AEC 281 (1960)...
17, 22, 33 In re Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4) Order, CLI-78-18, 8 NRC 293 (1978)...............................................
30 Consumers Power Co. (Midland Plant, Units 1 and 2), AIAB-315, 3 NRC 101 (1976)...............................................
30 In re Consumers Power Co. (Midland Station, Units 1 and 2),
AIAB-452, 6 NRC 892 (1977)....................................
13
P_ age In re Duke Power Co. (Catawba Nuclear Stations, thits 1 and 2),
ALAB-355, 4 NRC 397 (1976).....................................
9, 13 In re Duke Power Co. (Perkins Nuclear Station, Units 1, 2, and 3),
AIAB-302, 2 NRC.856 (1975)..................................... 13 Gulf States Utilities Co. (River Bend Station, Units 1 and 2),
ALAB-317, 3 NRC 175 (1976).................................... 11 Matter of HamHn Testing Iabs, Inc., 2 AEC 423 (1964)............... 18, 22, 33 Metropolitan Edison Cmnany (Three Mile Island Nuclear Station, Unit No.1)
- Order and Notice of Hearing, CLI-79-8, 10 NRC 141 (1979).....
2,6,11,34,35
- Order, CLI-80-5, 11 NRC 408 (1980)........................... 3
- Partial Tnieial Decisions
- LBP-81-32, 14 NRC 381 (1981)............................ 2
- LBP-81-59, 14 NRC 1211 (1981)...........................
2
- LBP-82 __, 15 NRC (July 27, 1982)..................
passim
- Report of the Special Master (April 28, 1982)................
passim Public Service Electric and Gas Ccxnpany, et alv, (Hope Creek Generating Station, Units 1 and 2),
AIAB-394, 5 NRC 769 (1977).....................................
2 Virginia Electric Power Co. (North Anna Power Station, Units 1 and 2)
- AIAB-324, 3 NRC 347 (1976)...................................
19
- CLI-76-22, 4 NRC 480 (1976)..................................
19, 32 Matter of X-Ray Engineering Co., 1 AEC 553 (1960)...................
17, 22, 33 j
Statutes j
5 U. S. C. 5 5 58 (c)....................................................
31 18 U.S.C.
$1621.....................................................
30, 32 Atomic Energy Act of 1954, as amended, 42 U.S.C. 52011 et_ seq.
Section 274 (1), 42 U. S. C. 5 2021(1)............................. 14 Section 103(b) (2), 42 U.S.C. 52133(b) (2).......................
21 Section 107, 42 U.S.C. 52137..................................
20, 22, 31 l
Section 182 (a), 42 U.S. C. 52232 (a).............................
20, 21 Section 186(a), 42 U.S.C.
52236(a).............................
18,19,21,30,31,33 Federal Food, Drug and Cosmetic Act, 21 U.S.C. 5331(k).............
19 l
l I
-lii-t i
Regulations Py 10 C.F.R. Part 2, Subpact B.........................................
5, 21, 31, 33 10 C.F.R. Part 55.....................
3 10 C.F.R. 555.4(e).............................................
32 10 C. F. R. 5 55.10 (a) (6)......................................... 21 10 C. F. R. 5 5 5. 23 (1)............................................ 22 10 C.F.R. 555.40...............................................
5, 7, 22, 31, 33 Tegialative History S. Rep. 1699, 83d Cong., 2d Sess., reprinted in 1954 U.S. Code Cong. & Ad. News 3456......................................... 22 O
i l
l l
l l
1
-iv-
STAIEMENT OF QUESTIONS PRESENIED 1.
Whether operation of M-1 by individuals who were found by a Special Master and an Atomic Safety and Licensing Board Panel
(" Licensing Board") to have demonstrated a lack of integrity, poor judgment, and a lack of regard and respect for the NRC regtdatory process, provides reasonable assurance that public health and safety will be protected?
2.
Whether operation of M-1 prior to correction of serious deficiencies in the Licensee's operator training program, identified by both the Special Master and the Licensing Board, provides reasonable assurance that public health and safety will be protected?,
e STA'IDENT OF 'DE CASE Yne Cournonwealth sets forth herein only those facts and items of procedural history necessary for review of the Connonwealth's four exceptions to the July 27, 1982 Partial Initial Decision relating to operator cheating issues. See Public Service Electric and Gas Cmipany, et al. (Hope Creek Generating Station, Units 1 and 2) ALAB-394, 5 NRC 769, 771 n.2 (1977). A complete procedural history of this proceeding can be found in Metropolitan Edison Coupa q (Three Mile Island Nuclear Station, Unit No. 1), LBP-81-32, 14 NRC 381, Partial Initial Decision (Procedural Background and Managanent Issues) (August 27, 1981), at 111-36, and in subsequent Partial TniHal Decisions.1 The management PID addressed particular safety concerns identified by the Conmission in its August 9, 1979 Order and Notice of Hearing regarding Licensee's ability to manage and operate M-1 safely. More specifically, the following actions were requirdd to be accouplished j
prior to restart:
l 1.
The licensee shall take the following actions with respect to 'IMI-1:
(e) Augment the retraining of all Reactor Operators and Senior Reactor Operators assigned to the l
control room including training in the areas of natural circulation and smaU break loss of coolant accidents including revised procedures and the M -2 accident. All operators will also receive training at the B6H sinulator on the M -2 accident and the licensee will conduct a 100 percent reexamination of all operators in these areas. NRC will administer cocplete examinations to all licensed personnel in accordance with 10 C.F.R. 55.20-23.
1.
Subsequent Licensing Board decisions were issued on December 14, 1981, LBP-81-59
, 14 NRC 1211 (Plant Design and Procedures and Separation Issues (VoTirne I) and Emergency Planning (Volune II)); and on July
-, 15 NRC (Reopened Proceeding). Since all of 27, 1982, LBP these decisions were in sequentially nunbered paragraphs, the decisions will hereinafter be cited simply as PID 11 i
6.
The licensee shall demonstrate his managerial capability and resources to operate thit 1 while maineaining Unit 2 in a safe configuration and carrying out planned deconeaminarieri and/or restoration activities.
Issues to be addressed include the adecuacy of groups providing safety review and operational acvice, the management and tecinical capability and training of operations staff, the adequacy of the operational Quality Assurance progran and the facility procadmes, and the capability of inportant support organizations such as Health Physics and Plant Maintenance.
The armmiasion anplified on these standards in its Order of March 6, 1980. Of particular relevance to the Cn=r=mealth's exceptions is the following' issue:
(2) whether the operations and technical staff of Unit 1 is qualified to operate Unit 1 safely (the adequacy of the facility's maintenance program should be among the matters considered by the Board).
On April 23 and 24,1981, two of Licensee's senior reactor operators cheated extensively on NRC licensing examinations a hinistered pursuant to 10 C.F.R. Part 55. The Licensing Board was informed of these chaeing incidants in late July, 1981, shortly before issuance of its partial initial decision on Licensee's management conpetence to operate 'IMI-l safely. Rather than delaying issuance of the management decision, the Licensing Board issued the decision on August 27, 1981, but expressly retained jurisdiction to deterunne the extent to which the cheating episodes might affect its conclusions. PID at 45.
The Licensing Board subsequently appointed a Special Master to preside over a reopened hearing to consider the following broad issue:
l the effect of the information on cheating in the IEC l
April examination on the management issues considered I
or left open in the Partial Initial Decision, i
recognizing that, depending on the facts, the possible nexus of the cheating incident in the NRC examination l
goes beyond the cheating by two particular individuals and may involve the issues of Licensee's management l
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 l
operators would be tested and licensed.
- l
i i
Memorandum a d Order, October 14, 1981.
In aMirion to this broad issue, the Licensing Board set forth a n=har of specific issues.2 Of partim1=v relevance to the Cn=r==alth's exceptions are:
"1.
The extent of cheating by 'JMI-1 operator license candidates on (various examinations].
3.
The adequacy of Licensee's invese4 gar 4m of, and Licensee s response to, cheating or possible cheating in the examinations listed in Issue 1 above.
5.
The extent of Licensee managment knowledge of, i
encouragement of, negligent failure to 3revent, and/or involvement in caeating in the axwe mentioned IRC and Licensee examinations.
9.
The adequacy of Licensee's Plans for inproving the administration of future Licensee qualification examinations for licensed operators and candidates for operator licenses, including the need for independent administration and grading of such examinations.
- 12. h sufficiency of management criteria and procedures for certification of operator license candidates to the NRC with res met to the integrity of such candidates and tae sufficiency of the procedures with respect to the conpetence of such candidates.
Hearings on these issues were conducted in November and December of 1981. h hearings took 18 days (over 3500 transcipt pages), during which 39 witnesses testified. On April 28, 1982, following the filing of proposed findings of fact and conclusions of law by the parties,3 the l
Special Master issued a detailed 196 page report containing a certification of the evidentiary record, recmmended findings of fact, and reconmended conclusions. The parties were then afforded an opportunity to file couments with the Licensing Board on the substance and import of the 2.
The cmplete list of issues in the reopened hearing is set forth in the Report of the Special Master (April 28,1982) 13 (hereinafter cited as Special Master's Report 1
).
3.
The Conmanwealth filed proposed findings and conclusions on selected issues in the proceeding. Cannonwealth of Pennsylvania's Proposed Findings of Fact and Conclusions of Law on Issues Raised in Reopened Hearing on Operator Cheating (filed January 18, 1982).
Special Master's Report. On the basis of the Report, the evidentiary record, the parties' couments, and the parties' proposed findings of fact and conclusions of law, the Licensing Board issued its Partial Initial Decision on July 27, 1982.
The Licensing Board's decision differed in many substantial respects from the Special Master's Report. The Ccamrxwealth filed the following exceptions to the Licensing Board's decision:
(1) The Licensing Board erred as a matter of law and abused its discretion by pern4tting the Licensee to utilize operators G and IP as operators of M -1, mnding a hearing pursuant to 10 C.F.R. Part 2, Su part B, and 10 C.F.R. 555.40.
PID 112116-21.
(2) The Licensing Board erred as a matter of law and abused its discretion by permitting the Licensee to utilize senior reactor operator ID (Mr.
Husted), who is also a training instructor at M,
as an operator of IMI-1, pending a hearing pursuant to 10 C.F.R. Part 2, Subpart B, and 10 C.F.R. 555.40.
PID 12168.
(3) The Licensing Board erred as a matter of law in not requiring Licensee to ensure prior to restart that its training instructors have a "high level of competence in instruction, including knowledge of subjects taught, skill in presentation of knowledge, and preparation, adninistration, and evaluation of examinations" PID 112347(2), 2421(2).
(4) The Licensin the audit of Licensee'g Board erred in not requiring s training program to formulate a specific reconmendation as to whether Mr. Husted should be retained as a training instructor.
PID 12168.
Exceptions (1), (2), and (4) relate to the treatment of individual manbers of Licensee's staff and will be briefed together.5 Exception l
(3) relates to the standards that should be applied to Licensee's entire 4.
Pursuant to a Stipulation of Confidentiality among the parties, certain Licensee personnel were referred to by letter designation in the proceeding and in the record below. Although confidentiality was waived with respect to the individuals in this document, letter designations will be used to avoid confusion.
5.
Exceptions (2) and (. ) both involve senior reactor operator and 4
training instructor DD (Mr. Husted). These two exceptions will be combined for purposes of this brief.
training staff. The specific factual history of each of these two mjor l
issues is outlined briefly below.
4 T
A.
Indivirbal Operators 1.
G and H l
As part of the Licensee's response to the initial discovery of cheating on NRC-adninistered exandnatims, the Licensee enplcyed a consultant, Professor Edward Trtmk, to conduct an ip % t aaalysis of several sets of Licensee-adninistered exams to ascertain whether there were any indio-tims of cheating. See generally Trunk, ff. Tr.
24, 831; J. Wilson, ff. Tr. 24, 478. Professor Trtmk's reviews produced a large number of paralleliams between answers by cfr. G and Mr. H on a series of quizzes. These parallels are d~, m ted extensively in the record. Wilson, ff. Tr. 24, 478, at 4-9; Trunk, ff. Tr. 24, 831, at 6, 7, 9, 10, 11; Licensee Ex. 66a-h; Licensee Ex. 70a-e; ' DEA 5x. 75, 77-80, 86-87. Of particular significance are parallels on three " Category T' make-up exminations. See, e.g., Trtmk, ff. Tr. 24, 831, at 6.
" Category T' refers to the 'DE-2 accidant subject atter, exmination on which was specifically inposed by the Comission as a restart requirement l
in short-term order its 1(e) of the Order and Notice of Hearing.6
)
Detailed discussions of the evidence of cheating on these and other e
exams and quizzes by G and H is contained in the Cananwealth's proposed findings and conclusions 1151-55, the Special Master's Report 1126-77, and the FID 112096-2121.
Both G and H testified extensively on the witness stand and repeatedly denied cheating. See Special Master's Report 129.
But both the Special i
i 6.
See page 2, supra...
Mastar aid the Licensing Board foted both that G &nd H were guilty of cheating, and that they pr~h ad false testinony as witnesses. The i
Special Master concluded as follows:
One is forced to conclude that G and H cooperated on the q"4 - e.
Neither memorization nor the use of lesson material can explain the tuober and nature of the similarities. There are simply too many instances which are unexplained. Moreover, the testimony seeking to explain them is' false. The ':cor pMwsing, the cooperation by others, axi tm general acceptance of cooperation, are all factors which reinforce j
this conclusion.
1 Spec, c ; aster's Report,177. The Licensing Board adopted the Special i
Master's conclusion that "some sets of responses independently established cooperation, others strongly suggested cooperation and... the pattern established by all of them also establishes cooperation." PID 12115.
j See also id. 1120 % -97.
The Licensing Board further found that G and 1
H's explanations of the parallels discovered in their exams were " incredible".
PID 12114.
The -=lth urged that the Licensee not be permitted to operate e
TMI-l using G and H, pending further pracaadings purcuant to 10 C.F.R.
j 555.40(b).
Comnonwealth's Proposed Conclusions of Law (p. 47). The i
Spanial Master concurred in this rarm-ndation:
G and H also engaged in systematic, extensive cooperation over a period of time. The evidence of their cooperation was clear, both from the nunber, and the nature, of their similar written i
answers. Despice this clear evidence they denied to Mr. Wilson that they had cooperated and they also denied it on the witness stand. Their deniale were wholly inplausible... The Licensee and these individuals took the position that cooperation on the quizzes was cheating, and then contended, in the face of overwhelming evidence to the contrary, that no cheating occurred. The fact is that G and H are guilty of cheating as they and the Licensee l
have defined cheating.
I see no alternative to concluding, and reca-nding, that the Licensee be prohibited from using G and H to operate TMI-1.
Special Master's Report, 1311.
The Licensing Board, despite concluding that G and H cheated on a series of exams and probably cheated on others, and perhaps more inportantly that G and H presented intruthful explanations for their actions under oath before the Special Faster, reconnended that an appropriate sanction would be the voluntary acceptance of two weeks' leave without pay.7 PID 112116-2121. The Cannonwealth argues infra that this judgment constituted an abuse of the Licensing Board's discretion and that the Appeal Board should reject the Board's remedy and inpose a more severe sanction in order to effectuate a more appropriate result.
2.
DD (Mr. Husted)
&. Husted is an instructor in the M-1 licensed operator training departnwnt, as well as a licensed senior reactor operator. Tr. 26, 909 Ofusted). Entering the evidentiary hearing, there was little evidence that &. Husted was directly involved in any instances of cheating at M -l.
Information uncovered during the hearing, however, identified three areas in which W. Husted's integrity was called into question:
(1) The alleged solicitation by &. Husted of information from &. P during the April,1981 NRC exam.
(2)
&. Husted's apparent withholding of information relevant to potential cheating on the April,1981 IEC exam; and (3)
&. Husted's potential knowledge of or involvement in &. U's alleged use of Mr. Husted's office to facilitate cheating on the April,1981 tEC exam.
These allegations are discussed in the Om,mwealth's Proposed Findings, 116-24, 33-34.
7.
Both G and H and the Licensee have already elected to accept this
" remedy". See Licensee's Reply to Comnents of Other Parties on TMate FIfectiveness of Licensing Board's Partial Initial Decision (Reopened Proceeding) Dated July 27, 1982, at 39. The Bocrd's renedy was in the form of a "reconnendation" due to its perceived lack of jurisdiction over individuals. The Ccononwealth argues infra that the Board had jurisdiction over Licensee's use of individuals to operate M-1 pending individual enforcement actions. - _ _ - _.
The Special Muter found that &. Husted solicited information from
&. P during the NRC examination.8 Special Master's Report, 1111. The Special Master also found that &. Husted refused to cooperate with the NRC investigation, deliberately withheld information from NRC investigators, and produced less than credible testimony on the witness stand. Id.
11109-110, 316-17. While not reandy that &. Husted be relieved from licensed duties, the Special Master felt that some lesser sanction was appivpilate.
Id. 1317.
The Licensing Board overturned the Special Master's conclusion that
&. Husted cheated by soliciting information from &. P.9 PID 12149.
However, the Licensing Board did find that &. Husted provided " incredible" tertimony at the hearing. PID 12165.
In addition, the Licensing Board concluded that &. Husted:
refused to cooperate with the NRC investigators.
Moreover, 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.
His testimony on the matter was not only unbelievable, but it gave the sense that he didn't care whether he was believed or not.
8.
This judgment was based in large part on witness demeanor.
See Special Macter's Report, 11101-111.
9.
The Board based its determination largely on differing opinions than the Special Master regarding the candor of various witnesses.
Compare Special Master's Paport, 11109-10 with PID 112148-61. The Conmanwealth did not take exception to this factual determination by the Licensing Board. However, the Conmonwealth notes that a reviewing panel should not reject or modify the findings of the original factfinder lightly where the credibility of the evidence turns on dempanor.
In re Duke Power Co. (Catawba Nuclear Stations, Units 1 and 2), AIAB-355, 4 NRC 397, 403 (1976).
PID 112165-66. E reover, the Board concluded that "if Mr. Husted is representative of the M-1 training department, his attitude may be a partial explanation of Miy there was disrespect for the training program and the exminations.
we question whether he is able, or if able, willing, to inpart a sense of seriousness and responsibility to the M -1 operators.
I PID 12167.
Despite these far-reaching findings, the Board rW no sanction against Mr. Husted, who renains both a training instructor and a senior reactor operator at M. PID 12168. The Comanwealth argues infra l
that both the Special Master and the Licensing Board underestimated the inport of Mr. Husted's conduct, which amounted to a couplete disdain and disregard for the NRC regulatory process. The Cn===21th urges the Appeal Board to reject the Licensing Board'n decision and to inpose an appropriate sanction.
B.
Licensee's Training Program A major issue in the original as well as the reopened proceeding was the quality and effectiveness of Licensee's operator training program. During the original hearing, the Connonwealth participated actively and expressed substantial reservations regarding certain aspects of Licensee's operator training and staffing programs. See Comonwealth of Pennsylvania's Proposed Findings of Fact and Conclusions of Law on Management Issues (May 15, 1981). The majority of these reservaticus were resolved through the negotiation of certain cacmitments by the License. See, eg, Comanwealth of Pennsylvania's Reply Findings of Fact and Conclusions of Law on Management Issues (filed June 29, 1981). However, in securing these conmitments, the Ommonwealth made I
clear that it expected major flaws in the training program to be aedied prior to restart.
It is obvious that the Comonwealth has a subste4=1 i
continuing interest in the quality of Licensee's operator trainig progre.10 h Special Master found serious flaws in Licensee's training progre. See Special Master's Esport, 11238-51.
In pat +4 m1 =v, the Spe4=1 Master found that the program was "poorly adninistered... weak in content and ineffective in its method of instruction.
I do not believe that the Licensee's training progr e responded adequately to t'9 Comi.ssion's Order of August 9,1979." Id. 1251. More specifically, the Special Master fomd that:
the adninistration of the testing program was clearly inadequate. The weekly quizzes were not proctored on any regular basis... Operators cooperated on the quizzes and its was unclear whether they were supposed to do their own work
... Second, the method of instruction erophasized the menorization of, word formilaa, rather than an understanding of the concepts which the formilaa stood for. 03erators were taught words without being taught Wmt the words meant, i
Ibird, when operators showed that they were weak in a given area there was no apparent effort to actually teach them the materials in that area... Fourth, many of the questions on l
the quizzes were unrelated to the candidates' ability to operate the reactor. This encouraged menorization and diminished the operators' respect for the training program.
Id.
l The Licensing Board was equally harsh in its criticism of the training program. See PID 112321-46. The Licensing Board questioned
- 10. h Comanwealth filed no proposed findings and conclusions in the reopened hearing on operator training issues. However, the Ccx:monwealth explicitly reserved its right to participate as a full party on all
' issues on appeal. Gulf States Utilities Co. (River Bend Station, Units 1 and 2), AIAB-317, 3 NRC 175 (1976) (interested state may participate as a full party on appeal, regardless of scope of proposed findings, where the state participated actively in the proceeding below).
l the." quality assurance and quality control over the delivery of instruction at M -1" and raised doubts about the " quality of instruction (including delivery of instructional material, composition of examinations, and grading)." PID 112332, 2334. 'Ihese criticisms are fundamental to Licensee's training program. But the Licensing Board did not go so far as the Special Master in finding that the Licensee's training program was an inadequate response to the fm%tal restart requirement regarding operator retraining. Rather, the Licensing Board inposed the following conditions on 'IMI-1, to be satisfied within the first two years after any restart authorization:
(1) There shall be a two-year probationary period during which the Licensee's qualification and requalification testing and training program shall be subjected to an in-depth audit by independent auditors, approved by the Director of IER, such auditors to have had no role in the M -1 restart proceedings.
(2) Licensee shall establish criteria for qualifications of training instructors to ensure a high level of coupetence in instruction, including knowledge of subjects taught, skill in presentation of knowledge, and preparation, administration, and evaluation of examinations.
(3) Licensee shall develop and implement an internal auditing procedure, based on unscheduled (" surprise")
direct observation of the training and testing program at the point of delivery, such audits to be conducted by the Manager of Training and the Supervisor of Operator Training and not delegated.
(4) Licensee shall develop and implement a procedure for routine sanpling and review of examination answers for evidence of cheat
, using a review process approved by the IRC S f.
Conditions (1), (3), and (4) are clearly prospective remedies. 'Ibe Connonwealth argues infra, however, that the quality of Licensee's training instructors (condition (2)) is a fundamental requirement that should be assured prior to restart, and that the existence of written procedures alone cannot provide such assurance. -
ARGl2ENT I.
'nE APPEAL BOARD SHOUID SUBSTITUIE ITS DISCRETIW FOR 'HIAT OF 'DE LICENSIl0 BOARD MIERE AN IMPORTANT PUBLIC POLICY IS AT STAKE.
It is well-settled NRC law that the substantial evidence rule is not strictly applicable to the Appeal Board in reviewing actions of a Licensing Board panel.
In re Duke Power Co., supra. See also In re Duke Power Co. (Perkins Nuclear Station, thits 1, 2, and 3), AIAB-302, 2 NRC 856 (1975), and authorities cited therein; In re Constrners Power Co.
(Midland Station, thits 1 and 2), AIAB ' _, 6 NRC 892 (1977). As such, the Appeal Board is enpowered to substitute its judgment for that of a Licensing Board:
Where the adninistrative record considered as a whole will fairly sustain a nsult deemed preferable by the agency to the one selected by its initial decision maker, the law is clear that the agency may substitute its jwigment for its subordinates.
In re Duke Power Co. (Catawba), supra.
ihe &=rmealth does not suggest that the Appeal Board should reverse the Licenning Board lightly with regard to findings of fact.
- See, e.g., In re Duke Power Co. (Catawba). As noted in note 9, supra, a reviewing tribunal should not reverse the findings of an initial factfinder lightly, in particular where the factfinder was in a better position than the reviewers to evaluate the evid mce (for example, where demeanor is l
critical to the credibility of the evidence). The Ccomonwealth specifically elected not to file exceptions to the Licensing Board's decision where the Conraonwealth and the Licensing Board differed as to marginal questions of fact.
By contrast, the justification for Appeal Board reversal of a Licensing Board is greatest where the Licensing Board's exercise of judgment is contrary to the basic principles of the agency's regulatory -.
responsibility. The issues raised by the C-Jth challpnge the fmdaar.ntal integrity not only of the individuala responsible for the operation of 1MI-1, but of the entire NRC regulatory process. As explained more fully below, the Licensing Board decision suggests that integrity is not essential to safety. The Comanwealth asserts as a ftrbetal principal of public policy that a regulatory agency such as the NRC nust insist on no less than the highest standards of integrity from the regulated industry. The couplexity of the nuclear power industry necessitates a large degree of regulation based on self-monitoring, self-reporting, and at best, spot inspections. Wittout an absolute requirement of integrity, the assunption on which the reliability of the system depends is not met. To the m'snt that the Licensing Boa.rd's decision fails to adhere to this principle, the Appeal Board is coupelled to substitute its discretion for that of the ASLB.
The n-r=alth notes that it does not urge the Appeal Board to exercise its discretion in this fashion mtirely from an " outsider's" perspective. The Comonwealth itself regulates a broad array of industries on a multitude of complex issues. Many of these regulatory programs are dependent on the same trust in the integrity of the regulated industry as is characteristic of NRC regulation.
But for the subject matter being regulated (nuclear power), such discretion would lie within the bounds of state police power. For this reason, the Cannonwealth respectfully suggests that its " advice" to the Ccxanission in this regard, see 42 U.S.C. 52021(1), is entitled to particularly great deference.
The issues involved here relate not to the details of nuclear technology, which is rightfully within the unique expertise of the NRC (hence a proper subject for preenption), but to a fundammtal question of the standards of accountability and integrity to W eh an industry within the Comonwealth of Pennsylvania should be held. Under these circunstances, the Carnission should consider with particular ecphasis the recournendations of an " interested state" participant.
e
i II.
INDIVIDUALS W10 IAE 'IHE REQUISITE INIEGRITY TO PEREDRM THEIR DUTIES SAFELY SHOULD M7f BE PERMITIED TO OPERNIE 'IMI-1.
A.
The Integrity Of Reactor Operators Is Critical To Nuclear Safety.
The en=nmwealth asserts that individuals G, H, and ID should not, I
based on the evhtiary record of the reopened hearing, and pending further proceedings against the individuals, be permitted to operate
'IMI-1.
This position is based on the principle that an individual who has deanstrated a finvhwetal lack of honesty should rat be entrusted with the serious responsibility of operating a nuclear power plant.
'Ihe need for operator integrity extends far beyond perforance on exams and quizzes, to the routine, daily duties of the operator. High-level Licensee management officials agreed in sworn testimony before the reopened hearing that integrity is essential to the safe operation of a nuclear power plant. Tr. 23, 611-12; 23, 616 (R. Arnold); Tr. 23, 983; 24, 082 (H. Hukill). Mr. Robert Arnold, President of GPU Nuclear Corporation, stated:
I do not think you can use a technology that has the degree of cocplexity or the potential for l
affecting the public unless there is confidance I
on the part of the public and of those that are concerned or those that are involved with the cecimology in the integrity of the people that are doing those kinds of activities, that are in fact utilizing that technology.
Id. at 23, 612.
t l
A brief review of the responsibility of reactor operators and senior reactor operators evidences the logic of this position. All licensed operators have hands-on responsibility for operating the facility.
Licensed operators routinely monitor the operation of the plant, ensure ccrupliance with technical specifications and operating conditions, fill out system status sheets and other safety-related records, and are --
required to observe detailed operating procedures.
See, e.g., Tr. 24, 082 (Hukill). Perhaps nest importantly, licensed operators bear critical safety-related responsibilities during reactor energencies. All of these duties nust be performed with a high degree of accuracy, which in turn requires the absolute integrity of the individual operators.
While this concept is difficult to challenge from any perspective, the Ca:monwealth has a particularly focused interest in the integrity of Licensee's operations staff. During an emergency, the Comnonwealth receives critical public health-related infonnation from Licensee's operations staff in the reactor control room. On the basis of this information, the Governor and other Comnonwealth officials make key public protective action decisions, such as whether to order evacuation.
Thus, the Comonwealth's ability to fulfill its responsibility of making rational public health and safety decisions depends on its ability to receive trustworthy, reliable infomation fran Licensee's operations staff. The Conmonwealth has a right to expect high standards of integrity from these individuals.
The Atemic Energy Conmission recognized early on in the regulation of users of radioactive materials that the integrity and respect of i
licensees was a critical requirement for the efficacy of its regulatory program. In Matter of Advance Industrial X-Ray Laboratories, 1 AEC 281, 284-85 (1960), the conmission stated:
'*Ihe principle concern... is whether the personnel would regularly and continuously conply with the regulations of the Conmission, and [the prescribed operating procedures]."
Similarly, in Matter of X-Ray Engineering Co.,1 AEC 553, 555 (1960),
the Consission said:
Our regulations require meticulous attention to detail to assure the adequate protection -
of the public health and safety, and a licensee who regards the as trivial demonstrates a lack 1
of understanding of the Comission's, and Licensee's own, obl tion with regard to the public health and ety.
In the Matter of Hamlin Testing Labs, Inc., the ennmission reiterated this position even more forcefully:
We find in this licensee's past performance inadequate reason to believe.that it would in the future meet the high standards of conpliance which we nust require, and respond to proper inquiries with the simple candor on which we nust insist in order to discharge our own resznsibility for public health and safety.
Notting less than candor is sufficient.
2 AEC 423, 428 (1964) (enphasis added). 'Ibe Camission's decision to revoke the Hamlin license was based in large part on the Licensee's untruthful statements to AEC inspectors and falsification of records.
Id. at 423-26, 429.
In affirming the Comission's license denial in the Hamlin case, the U.S. Court of Appeals for the Sixth Circuit cited the extreme danger attached to the use of radinactive materials by unqualified persons, and the extent to which the public interest is critically i
involved in the use of such materials. Hamlin Testing Labs, Inc. v. U.S.
Atomic Energy Comission, 357 F.2d 632, 635 (6th Cir.1966). h Court further stated:
We can imagine no area requiring stricter l
adherence to rules and regulations than that dealing with radioactive materials...
l Id. at 638.
h Comission's policy regarding the standards of integrity and responsibility expected of licensees was enunciated most recently in the VEPC) " material false statement" line of cases.
In ruling that scienter was not a requirement for finding a material false statement under Section 186(a) of the Atomic Energy Act, 42 U.S.C. 52236(a), the Atomic l...
Safety and Licensing Appeal Board analogized to cases under the Federal l
Food, Drug and Cosmetic Act, 21 U.S.C. $331(k), in which exacting standards of conduct were applied to persons " standing in responsible rehtion to a public danger." Virginia Electric Power Co. (North Anna Power Station, Units 1 and 2), AIAB-324, 3 NRC 347, 356 (1976), quoting United States v. Wiesenfeld Warehouse Co., 376 U.S. 86, 91 (1964). 'Ibe Appeal Board stated:
It is not open to question that those who would construct and o)erate a nuclear facility
... stand in responsiale relation to a public danger.
Id. at 356 (enphasis added).
h Comission upheld the Appeal Board's decision regarding the scister issue. Virginia Electric Power Co. (North Anna Power Station, Units 1 and 2), CLI-76-22, 4 NRC 480, 486 (1976). In fact, the Comission went even further than the Appeal Board in inposing an independent duty on licensees to discover and present truthful information, since " licensees bear an unavoidable and heavy responsibility for helping insure that nuclear power is utilized safely." Id. at 486-87.11 h Msion stated that its primary duty is to protect public health and safety, and that " full disclosure... is vital if the Comission is to fulfill that duty." Id. at 488.
See Power Reactor Development Corp. v. International Union of Electric, Radio and Machine Workers, AFL-CIO, 367 U.S. 396 (1961). On appeal, the U.S. Court of Appeals found that the Comission's stringent reading of Section 186 was consistent with its statutory mandate to assure that the utilization of nuclear material "will provide adequate protection to the health and safety of the public." Virginia Electric Power Co. v. U.S. Nuclear Regulatory Comission, 571 F.2d 1289
- 11. 'Ihe Appeal Board in WPCO had ruled that silence could not constitute a material false statenent. AIAB-324, supra. l l
(4th Cir. 1978).
It is clear fra the above cases that the renmiasion views extremely seriously the requirement for absolute integrity and responsibility from its licensees. The nature of the risks inherent in the operation of nuclear power plants requires no less in order to ensure that public health and safety will be adequately protected.
B.
lack Of. Integrity Is An Aggwyriate Basis For The Comission To Revoke Or Suspend Operators' Licenses.
As discussed in the previous section, operator integrity and respect for the regulatory process are essential to reactor safety.
Revocation and/or suspension of operators' licenses for failure to meet these standards of conduct would be an aggiopriate exercise of the Camission's authority.
Individual operators are licensed pursuant to Section 107 of the Atomic Energy Act, which states:
The Comission shall--
(a) prescribe unifom conditions for licensing individuals as operators of any of the various classes of production and utilization facilities licensed in this chapter; (b) determine the qualifications of such individuals; j
(c) issue licenses to such individuals in such form as the Comission may prescribe; and (d) suspend such licenses for violations of any provision of this chapter or any rule or regulation issued thereunder whenever the Comission deerra such action desirable.
o l
42 U.S.C. 52137. Section 182(a) of the Act provides that, in reviewing license applications, the Comission may consider "the character of the applicant... or any other qualifications of the applicant as the Comission
.. ~.
may deem appive late..." 42 U.S.C. 52232(a).12 Thus, in considering r
initial license applications, the Camission may evaluate whether the applicant has the requisite integrity to operate the facility safely.
hse same standards may be evaluated by the Comission in detemining whether to revoke an operators' license. Section 186(a) of the Act states:
Any license may be revoked for any material false statement in the application or any statement of fact required under section 2232 of this title, or because of conditions revealed by such application or statement of fact or any report, record, or inspection or other means which would warrant the Comission to refuse to grant a license on an original application, or for failure to construct or operate a facility in accordance with the terms of the construction permit or license or the technical specifications in the application, or for violation of, or failure to observe any of the terms and provisions of this chapter or of any regulation of the Comission.
42 U.S.C. 52236(a) (emphasis adde' ).
See Cities of Statesville, et al.
d
- v. Atomic Energy Comission, 441 F.2d 962 (D.C. Cir.1969) (revocation power gives the Comission continuing police power over licenses).
Additional guidance can be derived from the Comission's regulntinns governing operators' licenses.
10 C.F.R. Part 55. The fundamental requirement for an operator's license is " evidence that the applicant has lanrnM to operate the controls in a ccupetent and safe manner and has need for [a] license in the performance of his duties." 10 C.F.R. 555.10(a)(6). This criterion basically requires cocpetence. An
- 12. Section 103 of the Act, which strictly applies to ccnmercial licenses, provides additional support for the principle that NRC licensees should be judged on the basis of character and attitude as well as ability.
Section 103(b)(2) directs the Conmission to issue licenses to persons "who are equipped to observe and agree to observe such safety standards to protect health and to minimize danger to life or property as the Comission may by rule establish." 42 U.S.C. S2133(b)(2).. - -.
additional requirement, in the opinion of the Comanwealth no less ispumsnt, is that the operator demonstrate an understanding of the
" necessity for a careful approach to the responsibility associated with the safe operation of the facility." 10 C.F.R. 555.23(1) (operating test requirements). & Comanwealth does not cwedmind how an operator who lacks fundamental integrity or displays a callous disrespect for the NRC licensing and hearing process can meet this criterion. As in the statute, a license may be revoked or suspended for any material false statement or any other statement or reason which would warrant initial license denial.
Application of these principles to individuals during the course of AEC/NRC regulatory history is apparently scarce. The cases cited in Section II.A of this brief, however, evidence that the Conmission takes i
seriously its authority to revoke or deny licenses on grounds of lack of integrity or disrespect for the regulatory process.
- See, e.g., Matter of Hamlin Testing Labs, Inc., supra; Matter of Advance Industrial X-Ray laboratories, supra; Matter of X-Ray Eng4 = ring Co., supra.
In addition, substantial additional guidance regarding the appropriate t
exercise of authority in revoking or suspending operators' licenses can 4
be derived from an analagous federal regulatory program. The legislative history of Section 107 of the Atomic Energy Act (quoted at page 19, supra) indicates that the Consission is to " license operators of utilization or production facilities in a manner similar to the Civil 13 Aeronautics Authority licensing of airmen and the Federal Ormninications Cocmission licensing of radio operators."
S. Rep. 1699, 83d Cong., 2d Sess., reprinted in 1954, U.S. Code Cong. & Ad. News 3456, 3476.
- 13. h Civil Aeronautics Authority was succeeded by the Civil Aeronautics Board.
See Hard v. Civil Aeronautics Board, 248 F.2d 761 (7th Cir.1957). --- -
Regulation of airmen is a particularly coupelling analogy since both airmen (pilots, navigators, flight instructors, inspectors, etc.) and nuclear facility operators deal with a complex and potentially dangerous tech 1 ology with a high level of risk to public safety. Cases involving the licensing of a4=m are extremely illuninating in defining the appropriate scope of discretion and authority over individual licenses.
The following principles, distilled from these cases, are partim1=rly relevant to the circumstances surrounding individuals G, H, and DD:
(1) The primary consideration in taking actions on individn=1 licenses is public safety. Although it is natural and appropriate to balance the rights of the individual licensee againat protection of public health and safety, the interests of the public nust be paramount:
When a case is not in the criminal area one is naturally cautious for fear of punishing or depriving because of past acts. The regulation of air conserce, however, and the enforcement of the safety features of that regulation are not punishnent to the extent they deprive. The justification is the general safety not only of the applicant but of the public. The rights and needed protection of that public are the proper subject of concern.
Doe v. Department of Transportation, Federal Aviation A%4nistration, 412 F.2d 674, 680 (8th Cir.1969). Accord Hard v. Civil Aeronautics Board, supra, 248 F.2d at 762, 763 (key to air regulation is the public interest; statutory goal spelled out as the " highest degree of safety"). This principle clearly is equally applicable to the regulation of nuclear power plant operations.
E.g., Power Reactor Development Corp., supra.
(2) License denials or suspensions may properly be based on lack of integrity.
In Garber v. Civil Aeronautics Board, the revocation of a flight instructor's certificate was upheld where the instructor falsely endorsed a flight instruction logbook.
276 F.2d 321, 322-23 (2d Cir, i r
1%0). The Court found that while the remedy "may have been severe under the circumstances, we cannot find it was arbitrary where safety is at stake." Id. at 323, citing Walker v. C.A.B., 251 F.2d 954, 956 (2d Cir. 1958).
Similarly, in Cowell v. National Transportation Safety Board, a certification revocation was upheld on the basis of false and fraudulent statements in the application (false logbooks grossly overstating flying time).
612 F.2d 505, 506 (10th Cir. 1980).
In Cowell, the Court ruled that danger can be inferred from this demonstrated lack of integrity.
Id. at 506. h Conmanwealth asserts that the repeated cheating on quizzes and exams by G and H; Mr. Husted's concealment of information from the NRC and refusal to cooperate with the investigation; and the untruthful testimony presented by all three operators before an NRC adninistrative proceeding is closely analogous to the circumstances in these cases.
(3) License suspension or revocation may be justified notwithstanding demonstrated competence by the individual. As noted above, cocpetence and character are distinct criteria in judging the suitability of an applicant or a licensee. The mere passage of an exam or other demonstration of l<nowledge, ability, or conpetence does not make up for the lack of requisite integrity or sense of responsibility to perform one's duties safely, h refore, license suspension or revocation may be justified notwithstanding competence. Hard v. Civil Aeronautics Board, supra, 248 F.2d at 763-64 (no finding Of lack of flying ability; 11 year record and over 8,000 flight hours); Somlo v. divil Aeronautics Board, 367 F.2d 791, 793 (7th Cir.1966) (pilot may not ignore licensing requirements even if fully qualified). Messrs. G, H, and DD ultimately passed their NRC licensing exams. This alone, however, does not assure, --
that they possess the requisite integrity and sense of responsibility to perform their duties safely.
(4) License suspension or revocation actions serve an inportant deterrence goal where public safety is at stake. The Conmonwealth does not suggest that individual operators should be punished merely for exenplary purposes. However, the lax standards imposed by the Licensing Board clearly do not send a message to other operators and witnesses in NRC proceedings of the high standards of conduct necessary to protect public health and safety. Where otherwise justified under the circumstances, license actions against individuals serve important deterrent functions to prevent similar conduct in the future.
In Cobb v. National Traffic Safety Board, the Court stated that the Board is " charged with maintaining safety standards; in doing so, the agency is obligated to prevent future violations by those involved and by others similarly situated." 572 F.2d 202, 204 (9th Cir.1977) (emphasis added).14 See also Hard v. Civil Aeronautics Board, supra, 248 F.2d at 762 (Board action based in part on theory of deterrence against other pilots taking similar risks with other passengers' lives); Haines v. Department of Transportation, 449 F.2d 1073,1076 (D.C. Cir.1971) (potential danger is sufficient to l
justify agency action since regulation is intended to prevent danger to l
public). The Conmonwealth does not believe that the two weeks' leave without pay imposed on G and H, or the lack of any sanction whatsoever against Mr. Husted, serves this important public policy of preventing similar conduct by other operators and witnesses in the future.
In fact, overly lenient treatment may do just the opposite.
The Conmonwealth asks the Appeal Board to bear these standards and principles in mind when reviewing the cases of G, H, and Mr. Husted, l
14.
In fact, a concurring Judge in Cobb chastised the Board for being overly protective of the pilots it regulates.
572 F.2d at 204. __
t below. Consideration of the inportant policy objectives of the IEC in fulfilling its statutory duty to protect public health and safety warrants a different result than that ra= chad by the Licensing Board. Operators with a demonstrated lack of responsibility and integrity are not qualified to operate a nuclear power plant, notwithstandin6 functional ability and capetence. Finally, tolerating the types of c W t displayed 4
by G, H, and Mr. Husted not only fails to deter such conduct in the l'
future, but may actually send a message to other operators that this type of behavior will not be dealt with severely.
C.
h Licensing Board Abused Its Discretion By Permitting The Licensee To Use G, H, And Mr. Husted To Operate 'IMI-l And To Instruct Other Operators.
The Licensing Board itself appears to agree with the principle of dananding the integrity of Licensee's operations staff in the future.
In its criticism of Licensee's procgiures for certifying candidates as 4
eligible to sit for NRC licensing examinations, the Board states:
i the senior nanagement official charged with signing the certification to tha NRC is obligated __ to review the candidate's personnel file and to take into consideration any information reflecting on the candidate's integrity and attitude.
2351. Such steps, when inplemented, should eliminate the possibility of certifying candidates for the NRC avami m tion who have cheated on internal examinations on one or nore occasions.
PID 112350-51 (enphasis added). See also id. 12059. Obviously, the Board agrees that lack of integrity alone, notwithstanding knowledge and conpetence, is a sufficient reason to deny a reactor operator's license.
Yet the Board failed to apply this inportant principle retrospectively.
h Cn-r-alth is at a loss to understand why operators who cheat in l
the future will not even be permitted to sit for the NRC exarnination, while operators who harm cheated in the past are to be allowed to operate
'IMI-1.
j It is not necessary to detail the Speial Master's and the Licensing Board's findings regarding G, H, and Mr. Husted, which are stenarized in the Statenent of the Case, above. The Licensee did not take exception to these findings. Wreover, from a reading of Licensee's Reply to the Qxanents of Other Parties on the T==diate Effectiveness of the PID l
(Septanber 1,1982), the Licensee accepts these findings. See id. at~
h C-al h asks the Appeal Board to focus on the 39, 41.
t ramifications of these findings, and the sufficiency of the remedies the Licensing Board fashioned on the basis of these findings.
I 1.
G and H I
The Board found on the basis of the evidence in the reopened hearing that control room operators G and H were guilty of cheating on a series of internal coupany examinations. PID 112096-2121. Yet the Board simultaneously found that an acceptable remedy would be a "two-week suspension without pay in lieu of an action against their licenses."
Id. 12120. The Board explains this result by stating, in part:
We do not believe that the overall results demonstrate a poor understanding of the i
course material. We have, then, a cuestion of ethics, not of competence. G anc, H have l
passed their NRC examinations under properly l
Urxtitored conditions.
PID 12119 (a ghasis added). The Board violates its own principle that lack of ethics alone, notwithstanding coupetence, is sufficient grounds for denying an operator's license. See Hard v. Civil Aeronautics Board, supra; Somlo v. Civil Aeronautics Board, supra.
l -
The Licensing Board cites a runber of mitigating factors to justify its actions against G and H.
First, the Board states that the Licensee was largely responsible for G and H's cheating by " permitting an undisciplined training and av=mination envitumuunt." PID 12118. This rationale would place little or no inAanandant acem=*=hility on individuals whose daily exercise of jndommt is critically tied to the protection of public health and safety. According to the Board's standard,-
nuclear power plant operators do not have to be honest and responsible until explicitly so instructed in a written procedure.
From a public i
policy perspective, this result is intolerable. Moreover, the Board's argtunent fails to explain why G and H alone, of all'of the operators exposed to Licensee's training and examination envisuaumit, were guilty of cheating on such a continuous basis.15 Finally, the Board's logic here is adequately addressed by the Special Master, who argued:
The only mitigating factor concerning G and H is the possibility that they may have thought, beanne of the loose adninistration of the weekly quim7aa, that cooperation was acceptable. The stance they took at the hearing, however, and stance which the Licensee took, was to deny that they were, or could have been motivated by such a thour,ht. The Licensee and these individuals took t m position that cooperation on the quizzes l
was cheating, and then contended, in the face of overwhelming evidence to the contrary, that no cheating occurred. The fact is that G and H are guilty of cheating as they and the Licensee have defined cheating. I see no alternative to concluding, and rece= = nding, that the Licensee be prohibited from using G and H to operate 1MI-1.
Special Master's Report 1311 (enphasis added).
Second, the Board argues that G and H cheated on coupany, rather than NRC-administered exams. PID 12118. Although cheating on an official NRC licensing exam is clearly more significant than cheating on a weekly 15.
See PID 12115. The PID discusses cheating or potential cheating by other operators in isolated instances. EA PID 112123-38 (GG, W, M4).
training quiz, this does not excuse disbanest conduct at any time, particularly where the conduct is repeated over a long period of time.
Again, the daily and often nundane responsibilities of reactor operators nust be conducted with responsibility and integrity, whether or not an NRC inspector happens to be present. Finally, the Board overlooks the fact that nuch of G and H's cheating occurred on the Category T exams, which were specifically mandated by the Comnission as a restart requirement.
'Ihird, the Board cites the "relatively small" proportion of answers produced by cheating..PID 12119.
'Ibe Conmonwealth does not comprehend this argument. G and H's ennamt was of a conspiratorial nature, over a series _ of quizzes. As noted by the Licensing Board, "some sets of responses independently established cooperation, others strongly suggested cooperation and... the pattern established by all of them... establishes cooperation." PID 12115 (emphasis added). Of course, it is impossible to determine, absent candid testimony from G and H (which is lacking),
whether the clear parallels discovered by Professor Trunk and the other l
l parties represent only the tip of the iceberg.
In any event, G and H's conduct clearly represents core than one or two isolated, opportunistic cases of cheating. It is apparent that G and H cooperated to "get through" the training program.
Perhaps nore importantly, both the Special Master and the Licensing Board overlooked the significance of G and H's conduct after the cheating.
l Once it is concluded that G and H in fact cheated, it nuet also be l
concluded that G and H engaged in a cover-up. h y misled (or lied to) i Mr. Wilson during the conpany's internal investigation.
See PID 12115.
l h y repeatedly denied cheating under oath in the hearing before the t
l Special Master. gge Special Master's Report 1311 (quoted above). 'Ibe -
Consnanwealth treads lightly in terms of making accusations of potential crindnal emdnet, due to the applicable standards of proof in criminal l
preaadings.16 The en===alth notes, however, that the perjury provision of the Federal Criminal Code is applicable to testinony under oath in NRC pre aadings.
18 U.S.C. 51621. Moreover, G and H's statements could be construed as a material false statement pursuant to Section 186(a) of the Atomic Energy Act, 42 U.S.C. $2236(a). At a minimn, such conduct in NRC proceedings should be severely discouraged through the application of agency sanctions. The cmniasion has a strong interest in "the integrity of the adjudicatory process..." In re Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4)
Order, CLI-78-18, 8 NRC 293, 294 (1978).
j Iastly, the Board argues that actions againat individuals would violate due process. PID 12116. This argument clearly nust be rejected.
The purpose of the reopened procaading, inter alia, was to investigate the extent of chaating by 'IMI-l operators, and to evaluate the response l
by both the Licensee and the NRC Staff to any discovered cheating.
See j
Special Master's Report 13, Particular Issues 1, 2, and 3.
The Licensee has the burden of proof an all of these issues.
Consumers Power Co.
(Midland Plant, Units 1 and 2), AIAB-315, 3 NRC 101 (1976). Since Licensee failed to meet its burden with respect to cheating by G and H 1
and the appwpriate response to this cheating, the Licensing Board had authority to fashion an apprvpriate renedy against the Licensee, i.e.
l to direct 'that Licensee not be permitted to operate 'IMI-l intil appivpriate l
enforcement actions are taken against these individuals. The Licensing
- 16. License actions against G and H are clearly governed by " substantial evidence" standards rather than the tore stringent criminal burden l
of proof.
Sabinske v. Civil Aeronautics Board, 346 F.2d 142, 144 (5th Cir. 1965). <
Board itself appears to recognize the potential for this result in PID 12121,5 but fails to exercise clear jurisdiction over the Licensee.
h Cn-mwealth has no quarrel with the Board's argunent that license suspension or revocation actions with respect to individuals nust be consistent with principles of due process and established NRC regulations.
See PID 12116.
If such is the case, proceedings may be instituted in accordance with 10 c.F.R. 555.40. 'Ihis does not mean, however, that operators subject to such proceedings may operate the plant in the interim. 'Ihe Cannission clearly has the' authority, where public health and safety is jeopardized, to take license suspension actions in advance of any required hearing. 42 U.S.C. $2137: 5 U.S.C.
5558(c).
The Licensing Board's decision regarding operators G and H fails to protect important NRC policy objectives in assuring the integrity of the NRC regulatory process. 'Ihis decision constituted an abuse of the Licensing Board's discretion, and should be reversed by the Appeal Board. Licensee should be prohibited from operating 'IME-1 using G and H pending a hearing pursuant to 10 C.F.R. Part 2, Subpart B, and 10 l
C.F.R. 555.40.
2.
DD Ofr. Husted) i l
Mr. Husted was judged innocent of actual cheating on the NRC eunn by the Licensing Board, although this result was disputed by the Special l
l Master. Compare PID 12149 with Special Master's Report 1111. Yet even l
based on the Board's findings of fact, it is difficult to conprehend the lack of sanctions applied against Mr. Husted.
- 17. 'Ihe Connonwealth strongly objects to the Licensing Board's offer to " void" its recccmendation if Licensee snd G and H accepted the proposed two weeks' suspension without pay. 'Ihis, in effect, amounted to a " judicial plea bargain". Licensee cannot be permitted to avoid appellate review of the Licensing Board decision by quickly accepting the Board's improper offer. __
i The Board's findings regarding &. Husted (quoted in the Statenet of the Case, above) are astotziding, particularly in light of his position of responsibility in Licensee's organization. Mr. Husted's conduct amounted to nore than a mere " flippant" attitude, as inplied by the Licensee. See PID 12163. Mr. Husted refused to cooperate with the NRC Staff investigation of cheating at 1ME, and subsequently withheld infonnation within his knowledge.
Id. 12165. Failure to punish such i
conduct jeopardizes the efficacy of all future NRC investigations. More importantly, Mr. Husted provided highly incredible tertinony, under oath, before the Special Master. Id. 112165-66. As in the case of G and H, such Met jeopardizes the integrity and validi*v of the entire i
NRC regulatory and adjudicative process, and conceivably amounts to crindnal behavior in the context of 18 U.S.C. $1621 and 42 U.S.C. $2236(a).18 i
It is essential that the emniasion not allow such behavior to proceed with a mere slap on the wrist from the Licensee.
The Licensing Board questioned diether Mr. Husted was "able, or if able, willing to impart a sense of serimsness and responsibility to the 1MI-l operators." PID 12167. Yet the Board inposes no sanction against Mr. Husted because his " conduct during the investigation and his testimony is not related to his status as a licensed operator." Id.
12168. This directly contradicts the Board's opinion that, prospectively, attitude and integrity are clearly related to licensed reactor operator status.
In particular, as a senior reactor operator, Mr. Husted is responsible for directing the activities of other licensed operators.
10 C.F.R. 555.4(e). Moreover, the Board's findings regarding Mr. Husted
- 18. According to the Comnission's ruling in the VEPCO case, Mr. Husted had an affirmative duty to come forward with evidence relevant to the Staff's cheating investigation. Virginia Electric Power Co.,
i CLI-76-22, supra, 4 NRC at 486-88. l s me n,
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fall squarely within the principles established by the Atomic Energy camission regarding the obligations of licensees to respect the regulatory process. Matter of Hamlin Testing labs, Inc., supra ("We find in this licensee's past perfomance inadequate reson to believe that it would in tha future meet the high standards of coupliance which we nust require..."); Matter of Advance Industrial X-Ray Iaboratories, supra
(" principle concern... is whether the personnel would regularly and continuously couply with the regulations..."); Matter of X-Ray Engineering Co., supra ("a licensee who regards [the enniasions regulations]
l as trivial demonstrates a lack of understanding of the Ccanission's, and Licensee's own, obligation with regard to the public health and safety.").
Mr. Husted's behavior is equally clearly related to his ability to serve as a training instructor, where his attitudes may raadily be transferred to gther operators. The Licensing Board re a==nda that "the qualifications and delivery perfomance of Mr. Husted receive particular attention during the forthc = hg review of the M tra k hg j
progr e."
PID 12168. The Comanwealth requests that this racn==ndation be broadened to require a specific fhdhg as to whether or not Mr.
Husted should be retained as a training instructor, based both an his e
present qualifications and on his past conduct.
The Licensing Board's decision regarding Mr. Husted fails to safeguard inportant NRC public policy interests, and constitutes and abuse of discretion which should be reversed by the Appeal Board. Licensee should be prohibited from operating M -1 using DD pending a hearing pursuant to 10 C.F.R. Part 2, Subpart B, and 10 C.F.R. 555.40. Moreover, the independent audit of Licensee's training department should be required to include a specific recomendation as to whether Mr. Husted should be retained as a training instructor. -.
III. LI NSEE'S TRAINING INSTRUCTORS MIST BE ICIFIED AS QUALIFIED 2
PRICR TO RESTART.
The serious findings of both the Spe4=1 Master and the Licensing Board regarding the quality of Licanaee's operator training program are outlined in the Statement of the Case, above. Having deferred to the Spacial Master and Licensing Board to nJce findings of fact on this issue in the r-ad procaading, the =nmwealth is coupelled to c
confront the inplications of those findings.
If the Board's findings are accepted as correct, the major deficiencies in Licensee's operator i
tr=4ning program should be corrected prior to restart. This result is i
mandated by the fact that operator retraining was included as a short-tenn item in the e=niasion's August 9,1979 Order and Notice of Hearing, i.e. an item that nust be satisfied prior to restart.
The Board proposes four conditions on the restart of 1MI-1 to remedy the deficiencies it identified in Licensee's operator training program. These conditions are to be fulfilled within two years after 1
restart authorization. PID 12347.
Conditions (1), (3), and (4) are clearly prospective renedies.19 The Caumanwealth does not canprehend, however, why the second condition should not be expanded and required to
- 19. These conditions scate:
(1) There shall be a two-year probationary period during which the Licensee's qualification and requalification testing and training program shall be subjected to an in-depth audit by independent auditors, approved by the Director of NRR, such auditors to have had no role in the 1ME-1 restart prmaadings.
(3) Licensee shall develop and implement an internal auditing procedure, based on unscheduled (" surprise") direct observation of the training and testing program at the point of delivery, such audits to be conducted by the Manager of Training and the Supervisor of Operator Training and not delegated.
(4.) Licensee shall develop and inplement a prc,cedure for routine sanpling and review of examination answers for evidence of j
cheating, using a review process approved by the NRC Staff.
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be fulfilled prior to restart:
(2) Licensee shall establish criteria for qualifications of training instructors to ensure a high level of conpetence in instruction, including knowledge of subjects taught, skill in presentation of knowledge, and preparation, administration, and evaluation of examinations.
'Ibe Licensing Board questioned the " quality assurance and quality control over the delivery of instruction at 'IMI-1" and raised doubts about the " quality of instruction (including delivery of instructional material, cmposition of examinations, and grading)." PID 112332, 2334. 'Ibese criticisms are fmdamane=1 to Licensea's training progran.
1 Based on his analysis of the same findings, the Special Master concluded that Licensee's training program did not constitute an adequate response
~
to the Comission's August 9,1979 Order and Notice of Hearing. Report of the Special Master (April 28, 1982) 11251, 336. h Board disagrees because Licensee's operators, by and large, performed adequately on NRC qualificatim araminatims. Yet at the same time the Board severely-criticized the validity of the NRC examination. PID 112352-72. More importantly, passing an avamination is but one indicator of coupetence.
1 Qm14f4ad operators uust develop a firm base of knowledge fra a quality training program.
Based on the Board's own analysis, there is not currently reasottsle assurance that such quality training was given at
'IMI-1.
h Licensee's answer to this argunent is not responsive to the Cammwealth's concerns. Licensee's T-adiate Effectiveness Coments and Reply Cnments argue that " general criteria for qualifications of training instructors already exist and that detailed, specific instructor qualification criteria" will be developed prior to restart. Licensee's Reply Coments (September 1,1982) at 43 (emphasis added). 'Ihis empletely.- ~
misses the point. h Conxnonwealth's Exception (3) would require the
" Licensee to ensure" prior to restart that its training instructors have a 'high level of conpetence in instruction, including knowledge of subjects taught, skill in presentation of knowledge, and preparation, adninistration, and evaluation of avaminations. ' PID 112347(2), 2421(2)"
(additicxial enphasis added). The focus of the Ccxmxxrwealth's exception is to require a determination prior to restart of whether Licensee's instructors are qualified according to appwyriate standards.
In light of the substantial doubts expressed by the Licensing Board and the Special Master regarding the quality of Licensee's training program, this analysis is necessary to ensure the quality of the training staff itself, and hence the quality of instruction received by the operators in response to the Consission's Order smd Notice of Hearing. Licensee's response is that criteria have been developed by which training instructors are to be judged in the future. The development of written criteria alone cannot cure substantive defects in the training program.
See PID l
112323-32.
l The en=rmealth views with approval the Licensing Board's proposals to impose a higher level of quality assurance on Licensee's operator training program. However, the Conurxr.malth believes that a fundamental deficiency regarding the qualifications of Licensee's training instructors should be resolved prior to restart. Qualified instructors are necessary I
to deliver quality training. Such training was inposed by the Camiission as a short-term restart requiranent, i.e. a requirement that nust be net prior to restart.
l l.
IV. CONCWSION For the reasons stated above, the Omnmwealth respectfully requests this honorable Appeal Board to rule in favor of the Comnommalth's exceptions and to grant the requested relief.
Respectfully subnitted, y
Dutul.AS R. BIXZY
/
Chi'ef Counsel 10BERT W. ADER Assistant Counsel Department of Enviwuuental Resources Comonwealth of Pennsylvania Dated: September 30, 1982 9
D e
e l -__
4 WITED STATES OF AMERICA NUCEAR REGULATORY 00ttiISSION BERRE illE ATQiIC SAFETY AND LICENSING APPEAL BOARD In the Matter of:
METROPOLITAN EDISON 00tTANY, (Three Mile Island Nuclear Docket No. 50-289 Station, Unit No. 1)
(Restart) uanmCATE OF SERVIG This is to certify that.the foregoing "Cannonwealth of Pennsylvania's Brief in Support of Exceptions to the Atomic Safety and Licensing Board Partial Initial Decision Dated July 27, 1982 (Reopened Proceeding -
Operator Cheating)" was served on the persons on the attached service list this 30th day of September, 1982, by deposit in the U.S. mail, first class postage prepaid.
D.t
=
ML L
,f
UNITED STATES OF AFERICA -
NUCLEAR REGUIAIORY C0tt4ISSION BEEDRE 'IHE A10tIEC SAFEIY AND LICENSING BOARD In the Matter of:
MET. ROPOLITAN EDISON C0t4PANY,
)
)
Docket No. 50-289 (Three Mile Island Nuclear
)
(Restart)
Station, Unit No.1)
)
SERVICE LIST Docketing and Service Section Henry D. Hukill, Vice-President Office of the Secretary GPU Nuclear Corporation U.S. Nuclear Regulatory Comission P.O. Box 480 Washington, D.C.
20555 Middletown, Pennsylvania 17057 Ivan W. Smith, Esquire, Chairman Ms. Marjorie M. Aamodt Atomic Safety and Licensing Board Panel R.D. #5 U.S. Nuclear Regulatory Comission Coatesville, Pennsylvania 19320 Washington, D.C.
20555 ANGRY /'IMI PIRC Dr. Walter H. Jordan 1037 Maclay Street Atomic Safety and Licensing Board Panel Harrisburg, Pennsylvania 17103-881 West Outer Drive Oak Ridge, Tennessee 37830 Dr. Chauncey Kepford & Judith Johnsrud Environmental Coalition on Nuclear Power Dr. Linda W. Little 433 Orlando Avenue Atomic Safety and Licensing Board Panel State College, Pennsylvania 16801 5000 Hermitage Drive Raleigh, North Carolina 27612 Mr. Steven C. Sholly Union of Concerned Scientists George F. Trowbridge, Esquire 1346 Connecticut Avenue, N.W.
Shaw, Pittman, Potts & Trowbridge Dupont Circle Building, Suite 1101 1800 M Street, N.W.
Washington, D.C.
20036 Washington, D.C. 20006 Ms. Iruise Bradford James A. Tourtellotte, Esquire
'IMI Alert Office of the Executive Legal Director 315 Peffer Street U.S. Nuclear Regulatory Comission Harrisburg, Pennsylvania 17102 Washington, D.C.
20555 John A. Levin, Esquire Ellyn R. Weiss Assistant Counsel Harmon & Weiss Pennsylvania Public Utility Comission 1725 Eye Street, N.W., Suite 506 P.O. Box 3265 Washington, D.C.
20006 Harrisburg, Pennsylvania 17120 Karin P. Sheldon, Esquire (PAIE)
Jordan D. Cunningham, Esquire Harmon & Weiss Attorney for Newberry Township 1725 Eye Street, N.W., Suite 506 T.M.I. Steering Comittee Washington, D.C.
20006 2320 lbrth Second Street Harrisburg, Pennsylvania 17110
Judge Gary J. Edles, Chai m e Ar mic Safety & Licensing Appeal Board U.S. Nuclear Regulatory ennmiasion Washington, D.C.
20555 Judge Jolm H. Buck Armic Safety & Licensing Appeal Board U.S. Nuclear Regulatory rmniasion Washington, D.C.
20555 Judge Christine H. Kohl Atomi.c Safety & Licensing Appeal Board U.S. Nuclear Regulatory Comission Washington, D.C.
20555 Judge Reginald L. Gotchy Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Comission Washington, D.C.
20555 Professor Gary Milhollin 4412 Greenwich Parlmay, N.W.
Washington, D.C.
20007 Harry H. Voigt LeBoeuf, Lamb, Iaiby & MacRae 1333 New Hanpshire Avenue, N.W.
Washington, D.C.
20036
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