ML20091K069

Answer Opposing TMI Alert 840523 Motion to Reopen Record on Training Program Irregularities & Reportability of Beta & RHR Consultant Repts.Motion Not Based on New Info

ML20091K069
Person / Time
Site:	Three Mile Island
Issue date:	06/04/1984
From:	Blake E METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20091K070	List: ML20091K069 ML20091K080
References
NUDOCS 8406060407
Download: ML20091K069 (20)

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'8A EN ~6 n3:01 June 4, 1984 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

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METROPOLITAN EDISON COMPANY ) Docket No. 50-289

) (Restart)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

LICINSEE'S ANSWER TO TMIA MOTION TO REOPEN THE RECORD ON TRAINING PROGRAM IRREGULARITIES AND REPORTABILITY OF BETA AND RHR CONSULTANT REPORTS on May 23, 1984, TMIA filed a motion with the Appeal Board seeking to reopen the TMI-1 restart proceeding. The motion seeks to litigate the training program existent at TMI prior to the March, 1979 accident at TMI-2, the significance of the 1983 BETA and RHR Reports, and the adequacy of Licensee's disclosure of these matters. The purpose of such litigation would be to reevaluate Licensee's corporate character or integrity.

Licensee opposes the TMIA Motion.

In response to previous motions to reopen filed in this docket, the Appeal Board in ALAB-738 succinctly summarized the 8406060407 840604 DR ADOCK 05000289 PDR _

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" heavy" burden placed upon the proponent of a motion to reopen the record.1/

The criteria that a motion to reopen must satisfy haveLevolved over the last de-cade into a well defined tripartite test.

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(1) Is the motion timely? (2) Does it address significant safety.(or environ-mental) issues? (3) Might a different re-sult have been reached had the newly proferred material been considered ini-tially?

Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

ALAB-598, 11 N.R.C. 876, 879 (1980). See Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7.N.R.C. 320,-338 (1978); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 A.E.C. 520, 523 (1973).

Metropolitan Edison Company,(Three Mile Island Nuclear Station, Unit No. 1),.ALAB-738, 18 N.R.C. 177, 180 (1983). This burden is not reduced because' the Appeal Board has decided to reopen 1/ Whether the.TMIA Motion now properly rests before the Ap-peal Board in- view of the issuance of' the management decision in.this case,-ALAB-772,..is unclear. We would expect the Appeal Board .to rule on the Motion because it has retained jurisdic-tion over the management case pending remand in ALAB-772 of several. discreet issues. Cf. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAB-699, 16 N.R.C.

1324, 1327 L (1982) (licensing board has authority to reopen until it.has issued'a complete decision); . compare Virginia Electric &-Power Co.)'(North Anna Nuclear Power Station, Units-

, -1 and 2), ALAB-551,'9 N.R.C. 704, 705 (1979)-(once Appeal Board.

Lh as terminatedfits' review,.its jurisdiction comes to an end).

.In.any.. event, Licensee requests that any-referral of the Motion to the' Licensing Board include the referral'of. Licensee's An-swer, as well.

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the proceeding on other matters. See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

ALAB-756, 18 N.R.C. 1340, 1344 (1983) (application of tripar-tite test t? motion to reopen on construction QA issue notwith-standing fact that record previously reopened on issue of de-sign QA). The TMIA Motion is not based on significant new information, nor would the Licensing Board have reached a dif-ferent result had this information been considered initially.

Accordingly, the TMIA Motion should be denied.

I. Pre-Accident Training Practices The TMIA Motion does not make a timeliness arg ment in support of the. alleged need to reopen the hearing on pre-accident training practices, other than to state generally that it received the exhibits supporting the Commission's in-vestigation into past training irregularities, Report No.

Q-1-84-004, in mid-May. The absence of a timeliness argument is surprising, in view of the obvious untimeliness of this por-tion of the motion to reopen.

The substantive adequacy of training at TMI was litigated

.before the Licensing Board in 1981. TMIA was not sufficiently interested'in this issue to have a contention on training.

However, it attended and participated in the. hearings devoted to training issues. .TMIA cannot seriously be suggesting that until now,c-it'has not realized that there might have been s

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' deficiencies-in-the pre-accident training program at TMI. In

, fact, TMIA'does not explicitly state this. However, it does

< say)that pre-accident training practices raise "much larger-quest'ionslin. terms of overall management integrity"; presuma-bly,3it; contends that these "much larger questions" are new.

.TMIA. Motion at 13.

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-In support of its motion'to. reopen on pre-accident

' training practices, TMIA points to documents that surfaced in the'B&W litigation that discuss pre-accident training practices

. a n'd-asserted ~ deficiencies. TMIA Motion at 10-22. Most of the documents referred to'by TMIA have been publicly available for some ti~me: 'the Keaten Report was provided to TMIA in November, 1981;;the Book Memorandum was closed-out by the Office of In-

.vestigations in a'May,1 1983;investig'ation report, Q-1-83-014, which.was provided to'TMIA on June 27, 1983 (see Board Notifi-cation .83- 71A); /the '1977. and 1978 Tsaggaris memoranda referred to~by TMIAiwere previously cited by TMIA in-its July, 1983 In-

'terim' Comments'on the B&W Trial Record. The only-arguably.

'"new" 1 evidence is the redundanti, -1976 Tsaggaris memorandum and

s. s the Noll:: memorandum. ~ See:Exhibitsjl?andc2 of backup materials.

to OI' Report Q-1-84-004; :TMIA's own'. work substantiates this.

its discussiontofhpast' training; deficiencies-is-re-fact:

m imarkablyTsirillarlto : a! portion of } a pleading ' filed' with . the . Com- -

p mi'ssion 'inNuly ;11,/19'83. J

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See attached pages-from TMIA~ Interim:

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! Comments orilB&W ;TrialiRecord. ;TMIA1 states, J"All. of the; above-

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<s discussed deficiencies raise serious questions about manage-ment's commitment to resolve problems of which it is fully aware." TMIA Motion at 16. Even if this statement were true (which Licensee disputes), TMIA offers no explanation as to why these questions are surfacing now. Although the untimeliness of TMIA's Motion is not absolutely dispositive, its extreme lateness certainly suggests that TMIA's " heavy" burden has not been met.

Moreover, without regard to the untimeliness of the TMIA Motion on training inadequacies, TMIA's Motion does not contain any significant new information. There is no question that the

" quality of training" at TMI is a central element in estab-

. lishing GPU Nuclear's qualifications to operate TMI-1. TMIA Motion at 7. The testimony in the restart proceeding unequivo-cally established the attention paid by Licensee after the TMI-2 accident to the substantive adequacy of the training pro-gram at TMI. See Metropolitan Edison Company (Three_ Mile Is-land, Unit 1), LBP-81-32, 14 N.R.C. 381 at 441-79 (11163-276).

TMIA admits that this issue was litigated in enormous detail during the restart proceeding. "Without question, Licensee's training department _has been the subject of intense scrutiny in the restart hearing.because of the widely held belief that in-adequate training contributed significantly to the seriousness of the accident." TMIA Motion at 8,. citing the Report of the President's Commission on the Accident at~Three Mile Island,

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.Vol. 1 at pp. 45-50; see LBP-81-32, 14 N.R.C. at 442 ( 168).

A comparison of the very pages of the Kemeny Commission Report

. referred to by TMIA with the allegedly "new" information about training referred to by TMIA establishes that, even where the

- specific facts are not contained in the Kemeny Report, their significance certainly is.2/

TMIA appears to be arguing that the information it cites casts an important new light on the Licensing Board (and Appeal Board) findings on training. Notwithstanding TMIA's effort to fit the information about past training practices, the import of which has been well known for five years, into an allegedly new ' integrity" context, the plain fact is that TMIA's "integ-rity" argument is baseless. Contrary to what TMIA may believe, a new argument, however accusatory, does not constitute new information.

Moreover, TMIA-is incorrect and, given the nature of tha accusation, grievously so, when it states that " Licensee has misrepresented the most serious aspects of these [past training]-deficiencies to the Commission and to the public."

TMIA Motion at 9. TMIA's stated basis for Licensee's alleged

.-2/ ' Moreover', one of the. specific deficiencies identified by TMIA was the decision by senior plant managers prior to the TMI-2 accident not to retain an operator's license. TMIA Mo-

. tion at 17-18. This particular deficiency is explicitly iden-tified on page 50 of the Kemeny-Commission Report, one of the very pages cited by TMIA.

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misrepresentation is the confidence Licensee expressed in its testimony in the restart proceeding that its new training orga-nization and programs were adequate. Id. If TMIA is sug-gesting that Licensee's teF 'imony either was required to de-scribe pre-accident training practices or that, given these past practices, Licensee cannot institute an adequate training program and its testimony should have so stated, neither of these arguments is valid. Moreover there is no reason why such an argument could-not have been raised during the 1981 hearings or in findings and exceptions related to the 1981 PID.3/

3/ TMIA also states, " management misrepresented the seri-ousness of training programs to the NRC," TMIA Motion at 18-19 and n.8. TMIA's support for this accusation is Licensee'r

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, statement in its. December 5, 1979 response to NRC's Notice of

' Violation that.the TMI operators had an above average perfor-mance: record on the licensed' operator exams. Licensee does not understand-how TMIA can in good. faith label this statement a misrepresentation. In the first place, the statement is accurate. In addition, an'almost identical statement is contained in the Kemeny Report at the pages referred to by TMIA in its Motion. -Kemeny Report at 49 ("TMI operator license can-didates had higher. scores than the national average on NRC li-censing examinations and operating tests. Nevertheless, the training'of.the operators proved to be inadequate for re-sponding to the: accident."). Furthermore, Licensee's December 5, 1979Lletter also recognized "the need to significantly up-

. grade our nuclear program," and identified training as one spe-

.cific area requiring revision and expansion.

Licensee notes that TMIA's character attack on Licensee-is-

. undermined by TMIA's own July 1, 1983 Interim Comments to the Commission on the B&W Trial' Record. In its Interim Comments, TMIA~ referred to Licensee's December 5, 1979 response to the NRC's Notice of-Violation and stated that in it, Licensee.

" downplays the seriousness of the training department problem."

'TMIA Interim' Comments'at 53-and 33. Whether or not Licensee concurs: with this characterization, it is. clearly different (Continued Next Page) y

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'(Continued) from the misrepresentation label TMIA now invokes. Yet this change, which constitutes a serious attack on Licensee's integ-rity, is not supported by any additional factual basis.

Compare id. at 53 and 33 with TMIA Motion at 18-19.

4/ TMIA readily indicts Licensee and its senior managers, suggesting that they lack competence and/or integrity. Yet its basis for doing so suggests that TMIA considers itself not sub-ject to a standard of accuracy, much less the high standards of conduct that it (rightfully) expects from Licensee. Thus, TMIA suggests that Dr. Robert Long, Licensee's Vice President of Nuclear Assurance, is either ignorant or is consciously mis-leading the NRC Staff when, in his Office of Investigations in-terview, he stated his recollection that the Keaten Task Force did.not spend a great deal of effort on training. See TMIA Mo-tion at 21. TMIA challenges this recollection by stating, "Yet of all sections in the final task force report, the ' training section' was one of the longest." Id. A review of the Keaten Report establishes that not only is training not listed in the Report's table of contents, but the Report devotes only two of its total of forty-five pages to the subject of training. See GPU Accident Review Task Force Final Summary Report (Dec. 15, 1980), filed with the Commission, Appeal Board and parties by Licensee's counsel on November 14, 1981. Thus, Training-is only "one of the longest" sections because the major sections of the report, designated as A through G,.are divided up into numerous subsections, of which Training is one. This " longest" subsection is one of nine subsections contained in Section B of the Report, which discusses various aspects of the-issue, Ra-tionale for the Control Room and Staff Personnel Response.

Using the verification gauge of the size of the discussion relied upon by TMIA -- the length of the discussion -- it is

' TMIA andenot : Licensee that has " misrepresented" the record. It is. evident from a review of Table 1 of the Keaten Report, a

= copy of which is attached, that the task force's focus was not on training.

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Pre-March, 1979 training practices were not litigated dur-ing the restart proceeding because, as TMIA recognizes, it was well understood that significant changes to Licensee's training program were necessary. In particular. the Commission's August 9, 1979 Order required the retraining of licensed operators.

See LBP-81-32, 14 N.R.C. 381 at 451 (V 196). Moreover, Licens-ee was intent upon entirely reorganizing and changing the con-tent of its TMI training program. Id. at 443 (1 169).

Licensee therefore did not present testimony on past training activities, which were. obsolete. Rather, Licensee's case fo-cused on the new training organization and programs which were instituted at TMI to respond to the lessons Licensee and the industry had learned from the TMI-2 accident. This was appro-pria*e in view of the fact that the purpose of the restart pro-4 ceeding was to establish-Licensee's post-accident capability to operate TMI-l safely. Cf. ALAB-772, slip op. at 11 n.7 (the focus of the restart proceeding is on Licensee's ability to op-erate TMI-1 safely in the future). No party, including TMIA, complained about this focus. Licensee's training efforts, and corresponding testimony, were directed at establishing that this.was in fact the case. The fact that a licensed operator

.was critical of the training program in 1978, for example, was and~still is not material. See TMIA Motion at'12,la.6. As the

~ Appeal. Board stated in response to an Aamodt motion to reopen the record <nt the basis of a 1978 audit of training at TMI,

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Moreover, the significance of the audit to this proceeding is not apparent. Its find-ings do suggest much room for improvement in.TMI management in 1978. B".t as a result of the . accident at Unit 2 and the exten-sive hearings below, licensee's present management and training program are sub-stantially different from that in 1978.

See LBP-81-32, supra, 14 NRC at 403-79.

The Aamodts fail to explain how considera-tion now of this report -- critical of a management organization that no longer ex-ists -- might affect the outcome of this proceeding.

ALAB-738, 18 N.R.C. 177, 195 (1983). The Appeal Board's analy-sis is directly applicable to the pre-accident training infor-mation cut which TMIA's Motion is based.

In summary, Licensee's decision not to present. testimony on pre-accident training was not unreasonable, much less evi-dence of a lack of integrity. Moreover, had TMIA been inter-ested in this subject, the restart proceeding afforded it the opportunity, which it chose not to exercise, of pursuing the future implications of licensee's past training practices. (In the maintenance area, TMIA did pursue a comparable contantion.

See LBP-81-32,-14 N.R.C. at 479-501 (TV-277-348); ALAB-772, slip op, at 95-113.) The TMIA Motion to reopen the record on past training-deficiencies and TMIA's characterization of the import of those deficiencies utterly fails to satisfy the tri-

-partite test for reopening a record. Accordingly, the motion

.should be rejected.

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I II. The BETA and RHR Reports Over a year ago, TMIA filed a motion to reopen the record Jon the basis of the BETA and RHR Reports and the timeliness of

Licensee's disclosure of these documents. See Three Mile Is-

' land Alert Motion _to' Reopen the Record, May 23, 1983. The Ap-

--peal Board denied the motion, noting that it was_ premature to consider these matters because the NRC Staff investigations were still underway. ALAB-738, 18 N.R.C. 177, 197 (1983).

However, the Appeal' Board also found that "TMIA has failed to

. call to.our attention'anything so far that might have made a difference in the Licensing Board's decision." _I,d . In the Ap-peal Board's' judgment, some p'ortions of these reports.were

! critical of TMI management; other portions.were favorable. Id.

-" Significantly, the specific focus of the BETA Report is on ways'to cutLeosts and improve,the efficiency of operations, not

- on safety matters." ' Ijd . at 198. With respect to the RHR-Re-port,: the Appeal Board noted.that it represented "only thenini-

,tial: stage:of a much larger consulting activity','" was not con-sciously1"one-sided", was.not designed.to address _ management integrity directly, and'was potentially confusing. .

Id. The

' Appeal Board therefore concluded:

-Given the[limitationsLin^both: reports.and

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-ground covered therein1(including the crit-

?icisms);was well traversed.at.the hearing-below, we are unable to-conclude ~thatLany .

cf-the matterJcalled to our attention might have madelaEdifference in the Licensing j

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Board's decision. Further, we would not want to discourage any-licensee from under-taking such reviews of its management and operations (and disclosing their results) for fear of reopening a closed record.

ALAB-738, 18 N.R.C. 177, 198-99; see also NUREG-0680, Supp. No.

4'at 2-1 to 2-2 (NRC investigators could identify in RHR and J

BETA Reports "no information which raised significant safety or regulatory concern."

We believe the Appeal Board's prior consideration of the significance of the BETA and RHR Reports relates both to the reopening the record on the substance of the reports themselves and on the matter of the timeliness of their disclosure by Licensee. This is because both of these issues hinge on the materiality.or significance of the reports themselves. At issue today, however, is only the second question, namely, whether the new TMIA Motion is simply traversing old ground, or whether it establishes that there is significant new informa-tion about the-reportability of the BETA and RHR Reports which might have altered the Licensing Board (or Appeal Board) deci-sion on Licensee's management capability.

, In view of.the recent' issuance of the backup materials supporting the. Office of Investigation Report on the.re-portability of the RHR and BETA Reports,. Licensee does not dis-pute=the timeliness of this portion of the TMIA Motion. How-ever, these materials certainly do not contain'significant new-information which justify l reopening the TM1-1 record. To the a-l & :--

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. i contrary, OI interviews of members of Licensee management,

-which indicate these individuals' perceptions of the RHR and

. BETA Reports, are consistent with the legal position Licensee has-taken as to the significance of the reports, viz., that they are not " material". The OI Report backup materials there-fore substantiate Licensee's good faith in disclosing the BETA

.and RHR reports when it did, and refute TMIA's accusations about Licensee's integrity. This conclusion is buttressed by the conclusions reached by OI after conducting its major in-vestigative effort into the reportability issue.

The crux of TMIA's argument on the reportability of the BETA and RHR Reports is its view that, "No reasonably unbiased

' investigator could find other than a serious lack of integrity by Licensee's management on the basis of the evidence obtained in this (OI) investigation." TMIA Motion at 26. The asserted basis for this stinging indictment is Licensee's alleged "past failure to comply with reporting requirements, demonstrating-clear lack of responsible performance by current management relating directly to its integrity", id., and Licensee's con-

. tinued- perception that it was not obligated to disclose to the-Appeal Board and the parties to the restart proceeding the RHR and' BETA Reports. Id.

Rather than repeating-here in full its understanding of a Llicensee':s. affirmative disclosure requirements, Licensee refers the Appeal ~ Board to Attachment 10'to its Response to the

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Commission's Order of October 7, 1983. (A copy of the Response (see page 8) and Attachment 10, previously provided to the par-

-ties, is appended to the Appeal Board's copies of this Answer.)

In summary, a licensee must routinely disclose to the NRC Staff and, while a proceeding is underway, must notify the tribunal and the parties about information that is " relevant and materi-al" to the decision or' matter at issue. Duke Power Co.

(William B. McGuire Nuclear Station, Units 1 and 2), ALAB-143, 6 A.E.C. 623 (1973) (emphasis added); see also Virginia Electric & Power Co. (North Anna Power Station, Units 1 and 2),

ALAB-324, 3 N.R.C. 347, aff'd in part, rev'd in part, CLI-76-22, 4 N.R.C. 480 (1976), aff'd, 571 F.2d 1289 (4th Cir.

1978) (material false statements under Section 186 of the Atom-ic Energy Act, 42 U.S.C. 5 2236). Because all " material" infor-mation-is, by definition, relevant, the real issue is the defi-nition and application of the difficult legal concept of materiality. The NRC's recently revised Enforcement Policy states that material information has the " capability to influ-ence a reasonable agency expert." 49 Fed. Reg. 8583 (1984).

Unfortunately, this definition does not fully resolve the in-quiry because the term " influence" is not unambiguous. In Licensee's view, " influence" must mean that the information has a significant-impact on the expert; otherwise, materiality would be indistinguishable from the extremely broad' concept of relevancy. See TSC Industries,,Inc. v. Northway, Inc., 426

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.9 U.S. 438, 449 (1976) (materiality must have a " substantial likelihood" of affecting the decision maker's decision).

Clearly, however, if the information is redundant with informa-tion of which the Staff or tribunal already is fully aware, it cannot have any independent influence.

TMIA first argues that Licensee is disingenuous or somehow culpable in maintaining that the safety significance (or, actu-elly, insignificance) of the BETA and RHR Reports is pertinent to the issue of reportability. TMIA Motion at 26-28. In Licensee's view, TMIA's argument succeeds only in establishing TMIA's lack of understanding of the NRC's affirmative disclo-sure requirements and of the legal concept of materiality.

Licensee does not dispute TMIA's suggestion that GPU Nuclear management interviewed by OI refer repeatedly to their percep-tion that the subject reports lacked safety significance.

Licensee's managers believe that information without safety significance cannot be material to the NRC Staff or to NRC tri-bunals, which are concerned only with issues of health and safety consequence. Even if one were to challenge this view, Licensee's integrity can hardly be questioned for holding it.

TMIA next reviews selected portions of the exhibits sup-porting the OI investigative report, focusing on statements by Messrs. Dieckamp, Arnold, Clark, Hukill and Long about the im-materiality of the BETA and RHR Reports. For the most part, Licensee does not dispute TMIA's characterization of Licensee's

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q. position on the (non)reportability of the BETA and RER Re-

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i ports.5/ 3ee TMIA Motion at'28-37. However, Licensee does not concur with the significance TMIA appears to attach to Licens-ee'sl recognition that the NRC Staff (OELD) took issue with

, Licensee's view of:the reportability of these reports. Id. at 4

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, S/ Licensee does strongly-disagree with TMIA statement that RER's findings as to the quality of the training program were quite similar to-[ Judge] Milhollin's." TMIA Motion'at 33. In xthe.first place, RHR did not make findings on training. As TMIA well knows, RHR surveyed operators' attitudes. See ALAB-738, supra, 18 N.R.C. at 198. As to the record basis for l

.this assertion, See TMIA-Motion at 33 n. 13, Licensee has al-

, ready responded to it,in great detail, and the Board has re-

jected a previous TMIA motion to reopen on these arguments -

4 about the substance of the RHR Report. See Licensee's Response to Three Mile' Island Alert Motion.to Reopen thd Record, June 7, 1983, at 9-16; ALAB-738,. supra, 18 N.R.C. at 198-99.

Licensee ~also finds TMIA's citation to a statement by,Mr.

?.grnold misleading.' While Mr. Arnold'did' indicate that he ex-

-pected that the BETA; Report would be made public eventually, because of the State utility commission's interest in efficien-

, cy, see TMIA Motion 4t 37, he,also made clear that this publi-

' cation would occur (Fat some point in time" in the. future. ' 01 i Report 1-83-013,"Exh.=.19at 28-29. Contrary 1to TMIA's sugges -

tion, this statement" supports the view that Licensee never

. intended to conceal'the BETA findings 1from the public; it sim-( ply'did not consider the report NRC-reportable.*L '

Licensee findsfparticu'larly-objectionable TMIA's asser-

, tions about. Licensee',s views on thetsubstantive adequacy of training. See TMIA Motion at 33-35. Licensee' notes that all lawyers appearing before-the NRC, including those1 appearing on behalf.'of TMIA,.are bound to accurately represent.the facts and the positions of.the part'ies,.in accordance-with the Canons of .

-Ethics.= See: Pub'lic Service Company of' Oklahoma (Black Fox Sta-tion, Units lc and'2), ALAB-505,.8-N.R.C. 527 (1978) _ (counsel.

l .chastisedLforimisstatingslegal posture of an opposing party);

-Tennesee Valley Authority 4(Hartsville Nuclear Plant,: Units-1A,. ,

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--2 A, .1B, and . 2B ) , ALAB-409, 5 N.R.C. 1391-(1977) (co'uasel criti-t Ecizedsfor improperly _ misquoting an NRC regulation).

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31. TMIA appears to be suggesting that OELD's view that these I

documents were reportable somehow made them so. Licensee dis-agrees.6/ In any event, TMIA does not even suggest a basis, nor is there one, for its claim that " Licensee has either mis-represented its positions to the Licensing and Appeal Board, or to OI. In either case, it indicates a serious integrity prob-lem." TMIA Motion at 36. In many arenas, such wholly unsupported accusations would be stamped as libel.

TMIA next argues that Licensee "had inappropriate motives for withholding the reports." TMIA Motion at 41; see id. at 37-42. The considerable evidence supporting OI's investiga-tion, as well as the investigative report itself, simp 1y do not

- support this accusation.7/ Moreover, Licensee does not believo 6j/ TMIA also appears to suggest that Licensee knew that it should have disclosed these reports. TMIA Motion at 36-37. As a basis for this suggestion, TMIA quotes GPU Nuclear President Philip-R.' Clark out of context. Mr. Clark's statement makes clear that Licensee did n_ot think the reports had to be dis--

closed. Mr. Clark was simply reflecting tne company's subse-o quent reaction to the contr'versy over the reportability of the RHR and BETA Reports. See OI Report 1-83-013, Exh. 2 at 34-35.

7/ See, e.g., OI Report No. 1-83-013, Exh. 1-(testimony of Robert-C. Arnold) at 17-18,.24-29, 38-40, 55 (Arnold's under-standing of. reporting standard and its application to BETA and RHR Reports; concerns about public disclosure-of operators' and other' employees' confidences);;Exh. 2-(testimony of Philip R.

Clark) at'6-8, 14, 16-22,129-31, 34-36, 44-46 (Clark's views that. BETA Report an efficiency study, and RHR Report an exami-nation of_ operator-attitudes and morale; confidentiality of RHR-data; sensitivity to BETA Report staffing reduction recommenda-tions; reportability ofEreports);_Exh.~11 (testimony of Henry D. Hukill) atf12, 18-19,<20-22, 25-26,_35-37, 42-45, 49-53 (Contirued Next Page)

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'the very excerpts' selected by TMIA from the investigative in-terviews, even when'taken out of context, support this view, eithe r .- See, e'.g., Hukill statement that he was not concerned about the-publicity impact of the reports' disclosure, although he.knet that they, as most TMI subjects, probably would get

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negative publicity. TMIA Motion at 41, citing OI Investigative Report-Exhibit.ll-at'51.

TMIA is correct that Licensee publicly released the RHR '

and BETA Reports because of the staff's view, not Licensee's,

'that'it was necessary to do so. However, this fact does not reflect negatively on Licensee. Rather, it confirms Licensee's belief that~it was not. required to disclose these reports.

Licensee continues to believe its original position on disclo-sure was correct and, therefore, continues to abide by it. See (Continued)

(purpose of BETA and RHR-Reports; reportability; motivation in

~

disclosing reports to NRC Staff;; perception.of reports' con-tents, materiality); Exh. 19 (testimony of Robert L. Long) at

• 5-8,. 23-25,.33-35 (purpose of-RHR Report:to assess _ operators' attitudes; reportability);iExh. 21 (testimony of Herman M.

Dieckamp)-at- 6-2, 11-13, '15-20, 22-27 ( sensi tivity_ re confiden-tiality~of RHR work; purpose of RHR and BETA reports; re-

- portabilityfof' reports); see also Exh. 3 (testimony of Richard-W. Bass of. BETA) at 19-24 (BSTA Report did notfaffect health

-and safety.' issues); Exh. 4 (testimony of William Wegner.of BETA) at141-44-(re same); Ex. 14 (attached. memorandum from NRC 4 Region:I staff member Donald L..Caphton to-his Director, Thomas-

• iT.~ Martin) '("[t]he' subject matter-was not believed to have

-safety 1 impact,.yet ifitaken out of context, would appear to have' safety impact);fcompare Exh' 29 (memorandum ~from Harold R.

Dentonito Ben B. Hayes-re meaning of phrace,'no information of

" safety orfregulatory concern" in: BETA,_RHR and INPO' reports).

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TMIA Motion at 43. This is simply Licensee's good faith under-standing of the law. If Licensee's understar. ding is incorrect, it certainly would not refuse to comply with the articulated standard it was told to satisfy.8/ At this juncture, however, having reviewed NRC case law on affirmative disclosure require-ments and material false statements, as well as related case law, Licensee continues to believe its application of these concepts to the facts at issue here was correct. Thus, whether Licensee "does not understand the criteria and its responsibil-ities for reporting critical information to the Commission" is a legal issue in dispute among the parties. TMIA Motion at 43.

However, there is absolutely no basis, nor does TMIA provide any, for the TMIA factual assertion that Licensee "will contin-ue to choose [ sic] to deliberately withhold such information if adverse publicity, or action by the Commission, could result."

Id.

In summary, TMIA makes a completely specious allegation about Licensee's integrity because Licensee has taken a differ-ent, but perfectly legitimate legal position from that position favored by TMIA. TMIA's integrity allegation is not supported by the new materials which sparked it. To the contrary, based on these materials, the OI investigation "did not disclose any 8/ Cf. OI testimony of Philip R. Clark regarding Licensee's effort to obtain guidance from the NRC on a standard for affir-mative disclosure. OI Repcrt 1-83-013, Exh. 2 at 20-21.

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9 evidence of a deliberate attempt or conscious management deci-sion by GPUN to withhold the information in the BETA and RHR

. reports from the NRC," OI Report 1-83-013 at 4, nor did it otherwise find evidence that impugned Licensee's character.

Such an allegation utterly fails to satisfy the tripartite test for reopening an NRC proceeding.

Because TMIA has failed to make the requisite showing re-quired to reopen the TMI-1 restart proceeding to litigate pre-accident training practices, the RHR and BETA Reports and the adequacy of Licensee's disclosure of these matters, its f:o-tion should be denied.

Respectfully submitted, (Wl Y. kb&h Ernest L. Blake, Jr., P.C.

Deborah B. Bauser SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 Counsel'for Licensee Dated: June 4, 1984 p.

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