ML20112H134
| ML20112H134 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 03/28/1985 |
| From: | Blake E GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#285-321 CLI-85-02, CLI-85-2, SP, NUDOCS 8504020144 | |
| Download: ML20112H134 (31) | |
Text
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kU M en-r m.3 March 28, 1985 f?r.",f@h.:y P
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UNITED STATES OF AMERICA .:
NUCLEAR REGULATORY COMMISSION .
~
BEFORE THE COMMISSION In the Matter of )
)
METROPOLITAN EDISON COMPANY ) Docket No. 50-289 SP
) (Restart)
(Three Mile Island Nuclear )
Station, Unit No. 1) )
LICENSEE'S RESPONSE TO TMIA AND COMMONWEALTH OF PENNSYLVANIA MOTIONS FOR RECONSIDERATION OF CLI-85-2 On March 13, 1985, TMIA and the Commonwealth of Pennsylvania filed with the Commission motions seeking recon-sideration of the Commission's determinations concerning the need for further restart hearings, announced in CLI-85-2.y TMIA and the Commonwealth reargue that additional hearings are necessary on a number of subjects, contrary to the Commission's determinations in CLI-85-2. Licensee responds herein to the
_1f See TMIA's Motion For Reconsideration of Commission's Order of February 25, 1985 (dated March 13, 1985); Commonwealth -
of Pennsylvania's Motion For Reconsideration of Commission Order CLI-85-2 (dated March 13, 1985).
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various arguments advanced by TMIA and the Commonwealth in their reconsideration motions.
At the outset, Licensee notes that motions for reconsid-eration are generally disfavored absent need to correct an ob-vious decisional error.2/ Petitions for reconsideration are rarely granted. See generally 16 C. Wright, A. Miller, E. Coo-per & E. Gressman, Federal Practice and Procedure $ 3986 (1977); 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice para. 240.02 (2d ed. 1983). To succeed on a motion for reconsideration, a petitioner must show some inadequacy in 2/ It is not even clear that responses to motions for recon-sideration are either warranted or required. The two sections from the Commission's Rules of Practice that appear most closely applicable to the motions at hand provide conflicting procedures. Section 2.752(c) states that parties may not file replies to the objection to an order following a prehearing conference unless the board so directs. Section 2.771(b), how-ever, states that within ten days after a petition for recon-sideration of a final decision has been filed, any other party may file an answer in opposition to or in support of the peti-tion.
The following language "[f]or the future guidance of the Bar" from an Appeal Board decision denying a petition for re-consideration further clouds the procedural sky:
[I]t will never be necessary for a party to respond to a petition for reconsideration filed with an Appeal Board unless that Board has specifically requested it to do so.
Absent the most extraordinary circumstances, such a peti-tion will not be granted without a request for responses having first been made. This procedure basically conforms to that followed in the federal courts of appeals. See Rule 40(a) of the Federal Rules of Appellate Procedure.
Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Sta-tion) ALAB-166, 6 A.E.C. 1148, 1150 n. 7 (1973).
L_
l the record such as some new information "so significant that a different result would have been reached ... had that informa-tion been considered initially." Final Rule on Emergency Planning, CLI-80-40, 12 N.R.C. 636-37 (1980). Neither the TMIA nor the Commonwealth motion approaches meeting such a test. Nevertheless, Licensee provides below its views on the points raised by TMIA and the Commonwealth.3/
TMIA first complains of the Commission's September 11, 1984 instructions to those parties oeeking further hearings in the TMI-l restart proceeding. TAIA Motion, at 2-6. Those in-structions emphasized that the Commission intended to apply its traditional standards for reopening hearings.4/ TMIA's motion does not object to this portion of the instructions. The Com-mission then added the following specific instructions, to which TMIA now objects, for those parties seeking to reopen the restart hearing on the basis of new information:
3/ The Commonwealth seeks reconsideration generally on the same bases, with one exception, as TMIA. The one exception is licensed operator training where the Commonwealth alone argues that the Commission should await the Licensing Board's ruling on training before deciding on restart. Commonwealth motion at 6-7. The Commission did not decide this question in CLI-85-2 and thus the Commonwealth reconsideration request is out of place. Licensee further notes that the Commonwealth faults the Commission for not deciding whether to remove Chairman Ivan Smith (Id.); the Commission's action of March 26 presumably moots that Commonwealth concern.
4/ The Commonwealth's reconsideration motion like its earlier comments ignores the Commission's directive to address the tra-
! ditional standards for reopening and to specify disputed issues
! of material fact. As the Commission observed in CLI-85-2, such j conduct can result in default.
l
e The parties in addressing the scope of fur-ther hearings, if any, as requested throughout this order, shall designate the specific disputed issues of fact material to a restart decision by the Commission on which further evidence must be produced and shall provide their most substantial factu-al and technical bases for their position on each such issue. CLI-84-18, 20 N.R.C.
808, 809 (1984).
Thus the Commission instructed parties to identify disputed issues of fact on which further evidence must be produced and as to such issues to provide the most substantial and technical bases for their position on the need for further evidence.
The Commission necessarily had to make its decision on further hearings on the basis of facts available to it. Clear-ly the Commission was entitled to know which of the facts developed by independent OI investigation were in dispute and to know the basis on which parties claimed that further evi-l dence was required. Asking for the most substantial and tech-l l
nical bases the parties could provide was, as the Commission l
has put it, merely asking the parties "to put forward their l
best case in order uo justify further hearings." CLI-85-2 at
! 3, n.4.
The Commission's instructions placed no greater burden on TMIA than has already been placed on proponents to reopen hear-ings by established NRC case law. The cases recognize that such proponents have a " heavy burden." Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 N.R.C. 320, 338 (1978); Louisiana Power & Light Company
(Waterford Steam Electric Station, Unit 3), ALAB-753, 18 N.R.C.
1321, 1324 (1983). To meet that burden proponents must estab-lieh that there is a significant safety or environmental issue and that new information might have resulted in a different Li-censing Board decision. In making that demonstration the pro-ponent necessarily has to produce facts which justify its posi-tion.
TMIA complains that it was asked to identify the facts in dispute and its position on the need for further evidence prior to any permitted discovery. TMIA Motion at 2. TMIA has the cart before the horse. To meet the test for reopening it must first establish that there are sufficient facts to justify a further hearing including the opportunity for further discov-ery.5/ It is not enough to speculate that discovery would pro-duce such facts. The facts must be presented at the time of the request to reopen. As stated by the Appeal Board in the 5/ TMIA analogizes its position to that of a party faced with a motion for rummary judgment and in need of discovery to sup-port its opposition to the motion. A similar analogy was drawn some 12 years ago by an AEC Appeal Board which, in dicta, sug-gested that a' request for discovery in opposition to a motion to reopen could be entertained by a Licensing Board. The Ap-peal Board made it very clear, however, that "to justify the deferral of a ruling pending his utilization of discovery pro-cedures, the party opposing summary judgment must be able to demonstrate with some particularity that discovery is indeed likely to develop the basis for avoiding summary judgment on his contentions." Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station) ALAB-138, 6 AEC 520, 524 (1973). TMIA has not attempted to demonstrate with some par-ticularity that discovery would indeed be likely to develop a basis for reopening.
Waterford proceeding: "[i]t is not enough merely to express a willingness to provide unspecific, additional information in support of the motion at some unknown date in the future. Any supporting material should be provided with the motion so that the test for reopening can be meaningfully apolied." Id.
NRC has followed the practice set by its predecessor agen-cy of disallowing contentions in the early phases of a hearing where an intervenor fails to provide an adequate basis for the contention but proposes to do so through discovery. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), ALAB-lO7, 6 A.E.C. 188, 192, reconsid. den.
ALAS-llO, 6 A.E.C. 247 aff'd. CLI-73-12, 6 A.E.C. 241 (1973);
Duke Power Company (Catawba Nuclear Station, Units 1 and 2),
ALAB-687, 16 N.R.C. 460, 467-68 (1982). The Commission should not impose lesser requirements where, as here, TMIA seeks to reopen the hearing and embark on a new round of discovery after more than five years of hearings have been completed.
Finally, TMIA's complaint about the Commission's instruc-tions is untimely. The time to have objected to the instruc-tions was last September when the instructions were issued.
TMIA made no such objection at that time or even in its re-sponse to the September 11 order.6/ Motions for 6/ In its response to CLI-84-18 TMIA did complain about the the difficulty of providing the most substantial factual and technical bases for their position on the training and mailgram issues, since TMIA was at the time in the midst of discovery on both issues. On these issues the Commission has sanctioned completion of reopened hearings and TMIA's complaint is moot.
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reconsideration of a decision may not be based on legal argu-ments which could have been advanced prior to the decision.
Central Electric Power Cooperative, Inc. (Virgil C. Summer Nu-clear Station, Unit 1), CLI-81-26, 14 N.R.C. 787, 790 (1981),
citing Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B, 2B), ALAB-418, 6 N.R.C. 1, 2 (1977); see also Kansas Gas & Electric Co., et al. (Wolf Creek Generating Sta-tion,. Unit 1), ALAB-477, 7 N.R.C. 766, 768 (1978), citing Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, i 2A, 1B, 2B), ALAB-467, 7 N.R.C. 459, 462 (1978).
TMIA's second procedural complaint is that the standard applied by the Commission for reopening on the basis of the Staff's change of position is in legal error. TMIA Motion at 6-7. TMIA characterizes the basis of the Commission's decision as a determination by the Commission that Staff testimony on its changed position "would not have been likely to change the Licensing Board's validation of the company's management" and A
that the Licensing Board "would still decide in GPUN's favor."
Id.
To begin with, TMIA simply misstates the basis on which the Commission decided not to reopen the hearing. The.Commis-sion examined carefully each of the four issues which gave rise to the Staff's change of position and concluded as to each of them that the issues raised no significant safety issue of cur-rent concern. These findings were the basis for denying
reopening. With a finding of no safety significance, the Com-mission did not need to, and did not, reach the question of im-pact on the Licensing Board's decision, since proponents of a motion to reopen must satisfy all three prongs of the Commis-sion's standard for reopening. Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 N.R.C.
320, 338 (1978).
The Commission did proceed from its analysis of safety significance to consider the likely impact of the Staff's change of position on the hearing process had that change been communicated to the Licensing Board at the time of the hearing.
CLI-85-2 at 64-66. The Commission concluded that while the Staff's change in position could have had a significant impact on the Board's deliberations and the course and timing of the hearing, the Board would have pursued the issues which gave rise to the Staff's change in position, including the seri-ousness of the events and whether adequate corrective action had been taken. Id. at 66. Contrary to TMIA's characterization of the Commission's decision the Commission did not speculate on what the decision of the Licensing Board would have been.
It pointed out instead that the Board would have been pursuing L issues which the Commission had now found not to have current i
safety significance and therefore not in need of further hear-l
- ings, and that on other issues the Licensing Beard had ample i
- testimony as to Licensee's acceptability. There is no basis l
I l
for TMIA's assertion that the Commission rested its decision on a finding that the Staff's change of position would not have altered the Board's decision,2/ much less for TMIA's unexplained leap of logic that the Commission had somehow altered its traditional standards for reopening hearings.
In Section III of it motion for reconsideration, TMIA seems to call on the Commission to apply a standard whereby
. individual GPU Nuclear officers and directors would be held re-sponsible for acts of individual employees. There is a reason TMIA does not cite any authority for its arguments promoting such a standard. While it is the law that a corporation, as an entity or person, may be held accountable for acts of its i
employees, the straightforward hornhook rule is that individual directors and officers may be liable to the corporation for the misconduct of an officer, agent, or employee only if they par-ticipated in the misconduct or were negligent in selecting or supervising the officer, agent, or employee. H. Henn &
J. Alexander, Laws of Corporations (3d ed. 1983), 234: 3A Fletcher, Cyclopedia of the Law of Private Corporations $ 1069 (rev. perm. ed. 1975); see generally 3A Fletcher 55 1065-1100.
The cases are legion. TMIA has offered no evidence indicating any such participation or negligence.
2/ The Commission did find that the Staff's 'likely' change of position docs not invalidate the Licensing Board's deci-sion." CLI-85-2 ht 66. In the context of the Commission's de-cision this cannot reasonably be read as a prediction as to what effect the Staff's change of position would have had on the Licensing Board's decision.
TMIA and the Commonwealth of Pennsylvania complain that the Commission's decision not to order further hearings on TMI-2 pre-accident leak rate testing as part of the restart proceeding is based on a " factually incorrect" review of the evidence.8/ Quite to the contrary, the Commission has re-viewed the evidence with respect to determining who might have been involved in TMI-2 leak rate testing and what has been done to ensure that the kinds of problems associated with TMI-2 leak rate tests could not now occur at TMI-1. Having concluded that there are no individuals now in responsible operational or man-agerial positions at TMI-l who likely were implicated in pre-accident TMI-2 leak rate test falsifications, and that new pro-cedures in effect at TMI-l will ensure that the kinds of problems associated with TMI-2 leak rate test falsifications could not reoccur without management becoming aware of them, the Commission decided that TML-7 leak rate test falsification "no longer raise [s] a significant safety issue." CLI-85-2 at 34.
Although TMIA and the Commonwealth of Pennsylvania now suggest that the Comission made factual errors in reviewing the evidence, it is rather TMIA and the Commonwealth, in their 8/ TMIA in a related request asks that the Commission issue an Order requiring that informal discovery on TMI-2 leak rate testing now be required. TMIA Motion at 11-13. Licensee op-poses this request, there now being no pending proceeding for which such discovery would be appropriate.
Motions for Reconsideration, who misconstrue and incorrectly state the evidence which the Commission considered in deciding that TMI-2 leak rate testing practices do not today raise a significant safety issue with respect to the safe operation of TMI-1. For example, TMIA accuses the Commission of " dis-tort [ing] the views of the U.S. Attorney." TMIA Motion at 13.
It is, however, TMIA which distorts these views by neglecting to cite the clear, unambiguous language of the U.S. Attorney exonerating upper management of wrongdoing with respect to TMI-2 leak rate falsification.
However, the evidence presented to the Grand Jury and developed by the United States Attorney does not indicate that any of the following persons participated in, directed, condoned or was aware of the acts or or.issions that are the subject of the indictment. And they are William G. Kuhns, Herman M. Dieckamp, Robert C. Arnold, James S. Bartman, Shepard Bartnoff, Frederick D.
Hafer, Richard Heward, Henry D. Hukill, Edwin E. Kintner, James R. Leva, Bernard H.
Cherry, Phillip R. Clark, Verner H. Condon, Walter M. Creitz, Robert Fasulo, Ivan R.
Finfrock, William L. Gifford, Robert L.
Long, Frank Manganaro, Ernest M.
Schleicher, Floyd J. Smith, William A.
Verrochi, Raymond Werts and Richard F.
Wilson.
The list of individuals I just read in-cluCes all of the Directors and Officers of GPU Nuclear Corporation from its organiza-tion in 1982 to the date of the indictment and all the Directors of the Defendant Com-pany during the period covered by the in-dictment.
OI Report No. 1-83-010, Ex. 48, at 1-2, Rather than citing this abundantly clear statement of fact, TMIA takes, out of
context, a statement by the U.S. Attorney explaining why Metro-politan Edison Company was indicted as opposed to "a handful of scapegoat employees." TMIA Motion at 13-14. TMIA cites this language in an effort to suggest that because the grand jury indicted the corporate entity, upper management must have been involved in any wrongdoing. Nothing could be further from the truth. In fact, as TMIA must be well aware, it is a matter of undisputed criminal law that "a Corporation can be criminally liable for the acts and omissions of its employes [ sic)."
Transcript of Plea Proceedings, United States v. Metropolitan Edison Co., Criminal No. 83-00188, the United States District Court for the Middle District of Pennsylvania, February 28, 1984, at 16. In fact, as the U.S. Attorney made clear, Metro-politan Edison Company was charged as a result of the acts of its " control room operator" employees. Id. at 68. Hai any members of upper management been involved in, or aware of, leak rate test falsifications, the Department of Justice clearly would have sought indictments against these individuals. Any such upper management personnel would not have been perceived to be " scapegoat employees." The absence of an indictm'ent of any management individuals is consistent with the statement by the U.S. Attorney exonerating upper management from any wrong-doing.
The Commission's decision to rely on the U.S. Attorney's ststement that there was no evidence that any members of upper
management, including Kuhns or Dieckamp, participated in, directed, condoned, or were aware of, the circumstances sur-rounding leak rate testing practices at TMI-2 was not made in e vacuum. Certainly the Commission was aware of the depth and breadth of the investigation by the Department of Justice and the " Herculean effort" of the U.S. Attorney's Office "to get to the bottom of the facts." Id. at 63. Furthermore, the Commiu-sion took notice of the fact that upper management of a utility would not, nor should they, be familiar with the day-to-day details of how surveillance tests are performed at the facility. CLI-85-2 at 28. TMIA's notion that high-level exec-utives such as Kuhns or Dieckamp would have been intimately fa-miliar with the day-to-day operation of the plant and the myri-ad of surveillance testing that occurred has no evidentiary support whatsoever and runs completely contrary to what the Commission understands to be the normal operation of a nuclear power plant. Thus, the United States Attorney's conclusion, .
which came after several years of detailed investigation, that upper management was not involved in any leak rate test falsi-fications, was supported both by the evidentiary record and the Commission's own understanding of how upper management would and should operate.
Against the lack of any evidence developed by the U.S. At-torney's Office to suggest that upper management participated in, or was aware of, leak rate falsifications, and against the
e Commission's own understanding that these kinds of day-to-day operational issues would not come to upper management's atten-tion, TMIA, without offering any direct evidence in support, alleges that Kuhns and Dieckamp must have understood the prob-lems with leak rate testing.
By way of example, TMIA erroneously suggests that the ex-istence of increased identified leakage prior to the accident should have led management to question the accuracy of leak rate testing. "Anyone familiar with the operation of the plant, as these two (Kuhns and Dieckamp] clearly were, also knew that there was a direct correlation between the amount of identified leakage, and the accuracy of unidentified leak rate calculation." TMIA Motion at 16. The correlation suggested by TMIA simply does not exist; increases in identified leakage would not have alerted operational personnel, let alone upper management, to problems with accuracy of testing for unidentified leakage.
TMIA also claims that the Commission ignored evidence that upper management created financial pressures which led opera-tors to falsify leak rate tests at TMI-2. TMIA claims that
"[t]he testimony of shift supervisor Brian Mehler supports this view." TMIA Motion at 15. However, the transcript of Mehler's sworn interview reveals that TMIA has mischaracterized and mis-stated that interview. In fact. Mehler made it abundantly clear that "I don't know of any pressure that was ever put on
[ operators to alter leak rates in order to keep the plant on line]." OI Report No. 1-83-028, Supp. (April 16, 1984), Supp.
Ex. 124 at 36. Other than bald assertion, TMIA points to no ev-idence whatsoever to suggest that Kuhns or Dieckamp brought any financial pressures to bear leading operators to falsify leak rate tests at TMI-2.
Both TMIA and the Commonwealth of Pennsylvania also take exception to the Commission's conclusion that Michael Ross, Manager of Operations at TMI-1, was not involved in leak rate falsifications at TMI-2 and that his continued presence at TMI-1 does not pose a safety concern. Yet neither TMIA nor the Commonwealth can point to any evidence which indicates that Ross participated in, or was aware of, leak rate falsifica-tions. The record relied upon by the Commission clearly sup-ports its conclusion + hat Ross was not involved. Ross was in-terviewed by OI and the TMI-1 and TMI-2 leak rate investigations were reviewed. No evidence was developed to im-plicate Ross "in any inproprieties at TMI-1 or 2." O.I. Report No. 1-83-028, Supp. (April 16, 1974) at 2. The NRC Staff came to the following conclusion:
[T]he staff concluded that no evidence ex-ists to indicate that Ross was personally l
involved in leak rate testing. No testi-mony was given, during TMI-1 leak rate in-vestigation or during the IE interviews as part of the TMI-2 leak rate investigation, l to '.mplicate Ross in actual wrongdoing or l in pressuring operators to obtain accept-
, able leak rate test results. The contrast between the performance of leak rate testing on TMI-1 and TMI-2 and Ross' direct l
l l
l
responsibility for the activities at TMI-1, reflect positively on Ross' management ability. The staff finds, therefore, that Ross' activities associated with leak rate test'.ng were not improper.
NUREG-0680, Supp. No. 5 at 13-16. Thus, the Commonwealth of Pennsylvania is clearly wrong when it states "[t]here has been no definitive statement clearing Mr. Ross from involvement in leak rate testing at TMI-2."9/ Commonwealth Motion at 6. A more definitive statement than the one issued by the NRC Staff would be hard to imagine. There is no basis whatsoever to be-lieve that Mr. Ross was in any way involved in leak rate falsi-fications.
TMIA also challenges the Commission's decision to allow Brian Mehler, a former TMI-2 shift supervisor, to now serve as 9/ The Commission should also understand the basis for the Commonwealth's statement that it "has learned-that Ross was on duty at TMI-2 on numerous occasions prior to the 1979 accident at the time that the leak rate falsification problem was preva-lent." In fact, Ross spent the vast majority of his time at TMI-1 and only spent enough time in the TMI-2 control room to maintain his license. "Ross spent very little time in the con-trol room at TMI-2 before the accident." NUREG-0680, Supp. No.
5 at 5-6. The fact of Mr. Ross's occasional presence in the TMI-2 control room is not new information. This information simply has been confirmed by documents made available to the Commonwealth. Pursuant to a Licensing Board order in September 1984, the parties have engaged in informal discovery on leak rate testing. The Commonwealth's discovery has focused on Mr.
Ross. In response to the Commonwealth's request for documents which would reflect Ross's presence in the TMI-2 control room during leak rate tests, Licensee provided the Commonwealth with training records which reflect those very few (not " numerous")
dates on which Ross definitely was in the TMI-2 control room.
These records provide no basis for connecting Mr. Ross with any disputed leak rate tests performed at TMI-2.
TMI-1 Radwaste Manager. This position does not directly in-volve operation of the reactor. Nevertheless, TMIA objects to the Commission decision to allow Mehler to serve in his present position, even given its lesser safety significance, because TMIA claims that Mehler " clearly was involved in or had knowl-edge of TMI-2 leak rate falsification." TMIA Motion at 18.
TMIA presents no evidence to support this serious allegation.
The NRC Staff has found "that there is insufficient evidence to implicate Mehler in improper acts . . . and that there is rea-sonable assurance that GPUN can and will meet its regulatory responsibilities with no undue risk to the public health and safety with Mehler in a management position related to these responsibilities." NUREG-0680, Supp. No. 5 at 13, 17-18.
TMIA's assertion that the Commission erred with respect to its decision to allow Mehler to continue to serve as TMI-l Radwaste Manager cites no evidence contrary to that which led to the conclusions of the NRC Staff. Certainly, if additional infor-mation suggested a different result, the Commission could take action accordingly. The Commission's Order contemplates as much: "The Commission has decided based on available informa-tion that ... no further action regarding Mehler is necessary
... at least for the time before the separate hearings on this issue can be completed." CLI-85-2 at 26.
Both TMIA and the Commonwealth of Pennsylvania also com-plain that the Commission erred in deciding that a hearing is l
not required with respect to leak rate testing practices at TMI-l during the pre-accident period insofar as the facts sur-rounding that issue do not raise a significant safety concern.
TMIA and the Commonwealth complain of the Commission's review of these facts without pointing to any evidence which tends to refute the conclusion that leak rate falsifications did not occur at TMI-1.
As the Commission correctly points out, the NRC Office of Investigations conducted a detailed and thorough investigation, which included sworn interviews of all pre-accident and current TMI-l control room operators. In addition, OI conducted its own technical reviews of leak rate data. OI concluded "that there was no systematic pattern of falsification of leak rate surveillance tests at TMI-l during the time period in question nor can we prove that any individual operator knowingly and willfully attempted to manipulate leak rate surveillance test results." Memorandum from Ben Hayes to Thomas Murley, ,
April 16, 1984, at 2. The NRC Staff reviewed that OI report and also reviewed the report of Mr. Stier, a consultant re-tained by Licensee to address the TMI-l leak rate issues. The
( Stier Report arrived at the same conclusion as the OI report:
l l The overwhelming weight of the evidence
! demonstrates that TMI-l personnel did not manipulate or otherwise improperly influ-ence the outcome of reactor coolant inven-tory balance tests [ leak rate tests).
"TMI-l Reactor Coolant Inventory Balance Testing," Report of
(
Edwin H. Stier, June 13, 1984, at 9. Based on review of all the evidence, the NRC Staff concluded that "[t]here is no con-clusive evidence to indicate that any TMI-1 licensed or unlicensed operator intentionally performed plant evolutions during leak rate testing with the intended purpose of manipulating or falsifying leak rate results." NUREG-0680, Supp. No. 5 at 4-18.
Not only was there no evidence that leak rate test falsi-fications occurred at TMI-1, but there was absolutely no evi-dence of any motive to falsify test results at that facility.
"There was no apparent motive or need to manipulate leak rate tests at TMI-1. Operators experienced only minimal difficulty in conducting leak rate tests." NUREG-0680, Supp. No. 5, at 4-18.
Notwithstanding the unanimity of all evidence indicating that leak rate testing falsifications did not occur at TMI-1, and that there was no reason to falsify results, TMIA continues to suggest that hydrogen additions during leak rate tests at TMI-1 were done for evil purposes. TMIA completely disregards the fact that of the small number of hydrogen additions which I
appear to have occurred during leak rate tests, "none . . . had a significant effect on the leak rate results such that the technical specification limits would have been exceeded if the hydrogen additions had'not been made." Memorandum of Hayes to l
Murley, April 16, 1984, at 1. Furthermore, there was no l
i L
operating prohibition to adding hydrogen during a leak rate test and, contrary to TMIA's assertion that "OI has found no technical justification for those additions other than to af-feet leak rates" (TMIA Motion at 19), the NRC Staff has found that "there were legitimate operational reasons why hydrogen was added to the RCS MUT periodically." Id. at 4-6. In fact, there were " numerous hydrogen additions of short duration dur-ing periods when no leak rate tests were in progress." Id.
TMIA thus completely mischaracterizes the hydrogen addition issue.
TMIA and the Commonwealth both also improperly suggest that the existence of a loop seal at TMI-1 was not properly considered by the Commission. What both fail to perceive is that the existence of the loop seal is only potentially signif-icant if there is evidence of leak rate falsification at TMI-1.
As the NRC Staff concluded, without any evidence of leak rate falsification and no motive to falsify leak rate test results at TMI-1, the existence of the loop seal loses its importance.
The Commission quite properly understood that all evidence ihdicates that the leak rate test at TMI-1 did work; that leak rate test falsifications did not occur; and that there was no reason to expect them to have occurred. Accordingly, the Cem-mission very correctly concluded that leak rate testing at l TMI-1 does not pose a significant safety concern.
i o
O TMIA also attempts to reargue its claim that the restart hearing should be reopened to address an allegation that some TMI-2 employees involved in cleanup operations were harrassed in retaliation for raising safety concerns. TMIA Motion at 21-23. However, the Motion, while alleging that the Commission was guilty of " clear errors of fact" in its analysis, limits its exposition of these " errors" to a repetition of the Commis-sion's statements and a reference (usually "see generally") to the partisan allegations of its own August, 1984 Petition for Revocation. Nowhere does it explicate how the unspecified fac-tual errors call into question the validity of the Commission's conclusion.
TMIA claims the Commission ignored the fact that King and Gischel were engaged in protected activity at the time GPUN took action against them, but the Commission's order reflects that it was well aware of the timing of the events involved.10/
Having considered this circumstance with the rest of the evi-dence, however, it concluded that there was no support for an inference of retaliation by licensee againt King or Gischel, j and hence no basis to reopen.
l l
10/ Regarding King, "... the timing of the suspension may have given the appearance that it was retaliatory." (CLI-85-2 at 73). Regarding Gischel, the " controversy [about a medical ex-amination] happened to occur at the same time that Gischel was raising safety concerns." (Id. at 74).
Moreover, particularly with regard to Parks (though the same facts apply also to King and Gischel), the Commission em-phasized that the allegations related to Unit 2, not Unit 1; that the management personnel involved in these cases would not have responsibility for the operation of Unit 1 after restart; and that adequate procedures and policies are now in place to prevent future episodes of harrassment. Neither in its origi-nal papers nor in its Motion for Reconsideration does TMIA pro-vide a factual basis for a challenge to these views.
The Commission's Order took pains to recognize the factual allegations of each of the parties, including TMIA, and to dem-onstrate that unchallenged facts compelled the conclusion that the standard for reopening had not been met. Thus, with regard to King, the Commission discussed TMIA's claims, but found them unpersuasive and noted (a) that the facts indicated a legiti-mate basis for King's discharge in light of his position as President of a company hiring GPUN employees; (b) that GPUN had attempted to ensure consideration of King's safety concern by continuing his salary during his suspension, when it appeared that King was otherwise unwilling to participate; and (c) that the evidence cited by TMIA falls short of supporting an infer-ence of retaliatory conduct.
Similarly with Gischel, the Commission recognized that GPUN was obligated to press for a resolution of the questions raised by medical personnel concerning Gischel's fitness for
duty, and found no basis for a conclusion of retaliation. Re-opening of the hearing on this issue continues to be unwarranted.
Next, TMIA criticizes the Commission for fundamentally misstating the facts concerning the Keaten Report.11/ TMIA Mo-tion at 23-25. TMIA first faults the Commission for too narrow a discussion of changes in drafts of the Keaten Report, next claims the Commission doesn't understand either the Keaten Re-port draft changes or Metropolitan Edison Company's response to the October 1979 Notice of Violation (NOV), and finally pro-fesses to find evidence, allegedly ignored by the Commission, which shows the purpose of the Keaten Report was misrepre-sented. TMIA's attacks on the Commission are unwarranted.
TMIA first asserts that the Commission's discussion of the Keaten Report is too narrowly focused and that the Commission did not consider the pattern of changes in drafts of the Re-port. To suptprt its position, TMIA states the Commission
! Order lists only two draft changes and one item in the NOV re-l sponse. TMIR Motion at 23. To the contrary, the Commission l .
- Order explicitly reflects awareness of TMIA's prior arguments l
l concerning all the various changes. CLI-85-2 at 76-77,80. It l
l 11/ The Commonwealth as well cites the Keaten Report as i requiring additional hearings. Its one paragraph of conclusory i statements, however, adds nothing to arguments already made and
! addressed by the Commission in CLI-85-2. See Commonwealth Mo-I tion at 10.
i
is true that discussion of the specific changes which the Com-mission viewed as important was introduced by "For in-stance....", but to fault the Commission for simply utilizing examples to illustrate its ruling is ridiculous. In any event, the Commission goes on to formulate the test it sees as impor-tant with regard to whether the record should be reopened to consider the Keaten Report and TMIA ignores entirely this as-pect -- the essence -- of the Commission's Order.
TMIA next professes to glean from the Order fundamental confusion on the Commission's part concerning both the Keaten Report and Metropolitan Edison Company's 1979 NOV response.
TMIA says "...the Commission cites a Staff conclusion which has nothing whatever to do with that particular NOV response".
TMIA Motion at 24. The staff conclusion cited by the Commis-sion, however, is the concluding paragraph in the staff's NUREG-0680 findings on the Keaten Report and as such is on point.12/ TMIA then faults the Commission by noting that a Dieckamp observation that one argument in the NOV response was i
12/ Three specific areas are discussed by the staff in this section of NUREG-0650 -- whether the PORV block valve was re-t quired by procedure to have been shut prior to the accident due l to high tailpipe temperatures, whether those high tailpipe tem-peraturez resulted in delayed recognition of the open PORV on l the day of the accident, and whether a surveillance procedure l concerning emergency feedwater valves was properly conducted.
l The staff's conclusion on the NOV cited by the Commission takes i into account all three subjects. See NUREG-0680, Supp. No. 5 at 8-21.
" kind of thin" refers specifically to surveillance of the emer-gency feedwater valves. Id.; see OI Report No. 1-83-012 (Keaten), Exh. 16 at 129. But there is nothing inconsistent with this in the Commission Order to support TMIA's view of fundamental Commission confusion. The Commission's Order pre-sumably would be perfected in TMIA's view, if one word were changed so that the Order read "...found one argument ' kind of thin'..." rather than "...found the argument ' kind of thin'...." See CLI-85-2 at 82. This hardly can be seen to warrant serious reconsideration.
In its final argument regarding the Keaten Report, TMIA inappropriately miscites the Commission in order to generate a complaint, which it then addresses. TMIA sets up its complaint by stating: "The Commission makes a factual error in finding Kuhns and Dieckamp told the Commission that 'the study might well be made public and hence have a public impact.'" TMIA Mo-tion at 25 (citing CLI-85-2 at 84). TMIA then provides con-trary statements by Messrs. Kuhns and Dieckamp to disparage its own characterization of the Commission Order.
The Commission did not state what TMIA attributes to it.
l The statement cited by TMIA actually reads:
! ...The Commission finds nothing warranting a hearing i in licensee's contradictory statements regarding the l purpose of the report. Those statements indicate j that the purpose of the Report was an internal study, l but it was recognized that the study might well be made public and hence have a public impact.
CLI-85-2 at 83-84. Thus, the Commission does not ascribe to Messrs. Kuhns and Dieckamp the views espoused by TMIA. In fact, the Commission specifically acknowledged TMIA's view that Messrs. Kuhns and Dieckamp have indicated the Keaten Report was for internal purposes while others recognized that the Report s
would be made public. CLI-85-2 at 77. The Commission specifi-cally references those " contradictory statements" and TMIA's drummed-up contrary position is frivolous.
TMIA then claims that "[t]he Commission is factually in-correct" when it-states:
Lucien changed his conclusion when it was
- explained to him that only the date the overall testing process was finished was placed on the records. Lucien, based on this understanding, found that the discrep-ancy in the records "was the result of
' poor' administrative practices and recordkeeping." l TMIA Motion at 25 (citing CLI-85-2 at 85-86).
TMIA relies on its own Petition For Revocation of August 13, 1984 to support its claim. But the TMIA Petition itself states:
Lucien and his supervisor Van Witbeck, a member of the Keaten task force, met with the employees and as a result of the meet-ing, the conclusion which " indicated a pos-sible falsification of startup records" was changed "to a conclusion that the discrep-2 ancy in the records was the result of r " poor" administrative practices and recordkeeping."
TMIA Petition for Revocation, at A-183 (citing OI Report No.
+
l 1
- _ _ . - , - ...,__m.---___ __- ___,_,__-.----..._-m - - _-
r i
1-83-012 at(4),(70)). Moreover, TMIA's view of the facts as ex-pressed in its Petition is in turn based on OI's investigation No. 1-83-012 which states:
In effect, the original report (Exhibit 47) as written indicates a possible falsifica-tion of records. The addition, resulting from the December 3, 1979 meeting, con-cludes that the discrepancy was a result of
" poor administrative practices" and recordkeeping. LUCIEN said that this addi-tion was a direct result of the December 3rd meeting with Met Ed personnel. He said it was either PORTER or HAWKINS who told him that " grooming" efforts in cases such as this were done as standard operating practice without documentation at TMI dur-ing this time frame. LUCIEN said that based on this argument, he concluded that the tests could have been completed in one day and that " poor recordkeeping" relating to pretesting grooming efforts may have been the issue.
OI Report No. 1-83-012 (Keaten Report), at (70).
TMIA's claim that the Commission is factually incorrect is therefore silly. The Commission's statement accurately cap-tures the evidence. To the extent TMIA goes on to challenge whether Lucien should have changed his conclusion and what re-lated investigations he or others did, TMIA misses the point.
In its final section, TMIA faults the Commission for ac-cepting the staff's explanation for its change of position
! "since the Staff made no effort to explain why it chose the date of January 1, 1982, as the turning point for its renewed faith in GPUN management". TMIA Motion at 26, 26 n.9.13/
13/ The Commonwealth, too, faults Commission consideration of the Staff's change of position, stating that this issue must be heard because leak rate testing must be heard. We address leak rate testing supra.
I~
o TMIA ignores entirely the Staff's explanation of the signifi-cance of January, 1982 which the Staff provided to the Commis-sion. See NRC Staff's Brief In Response to CLI-84-18 (October 9, 1984), at 33-35. As the Staff there explained, it was in January, 1982, that GPU Nuclear Corporation (GPUN) was autho-rized to assume responsibility from Metropolitan Edison Company (Met Ed) as operator of TMI-1. GPUN is a dramatically differ-ent company personnel-wise and organizationally from Met Ed; those individuals in key management roles who did bridge the shift from Met Ed to GPUN were specifically evaluated. See e.g. GPU letter to Chairman Palladino, June 10, 1983, at 2; see also NUREG-0680, Supp. 5, at 13-1 to 13-19. January 1, 1982 serves as a convenient and sensible point for the Staff to denote as the time when GPUN with its new personnel and organi-zation assumed effective control of TMI-1 from Met Ed. The Staff explained its rationale and the Commission's acceptance of the Staff's explanation in this respect was proper.
For the reasons stated above, Licensee opposes the TMIA and Commonwealth motions that the Commission reconsider CLI-85-2.
Respectfully submitted, SHAW, FITTMAN, POTTS & TROWBRIDGE
($~ fOh.
Ernest L. Blake,"Jr., P.C.
Counsel for Licensee March 28, 1985 n
4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) i
) Docket No. 50-289 SP METROPOLITAN EDISON COMPANY ) (Restart)
(Three Mile Island Nuclear )
Station, Unit No. 1) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Response to TMIA and Commonwealth of Pennsylvania Motions for ,
Reconsideration of CLI-85-2", dated March 28, 1985, were served on those persons on the attached Service List by deposit in United States mail, postage prepaid, this 28th day of March, 1985.
Respectfully submitted,
.k .
Ernest L. Blake, Jr., P.C.
Counsel for Licensee DATED: March 28, 1985 F
. - ~ . - , , , , , , - - -
, ,. -. ----..r,,
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter )
)
METROPOLITAN EDISON COMPANY ) Docket No. S0-289 SP
) (Restart Romand on Management)
(Three Mile Island Nuclear )
Station, Unit No. 1) )
SERVICE LIST .
Nunzio J. Palladino, Chairman Administrative Judge U.S. Nuclear Regulatory Commission John H. Buck Washington, D.C. 20555 Atomic Safety & Licensing Appeal Board Thomas M. Roberts', Commissioner .U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Administrative Judge James K. Asselstine, Commissioner Christine N. Kohl U.S. Nuclear Regulatory Commission Atomic Safety & Licensing Appeal Washington, D.C. 20555 Board U.S. Nuclear Regulatory Commission Frederick Bernthal, Commissioner Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Administrative Judge Ivan W. Smith, Chairman Lando W. Zach Jr., Commissioner Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Administrative Judge Administrative Judge Gary J. Edles, Chairman Sheldon J. Wolfe Atomic Safety & Licensing Appeal Atomic Safety & Licensing Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555
Administrative Judge Mr. Henry D. Hukill Gustave A. Linenberger, Jr. Vice President Atomic Safety & Licensing Board , GPU Nuclear Corporation U.S. Nuclear Regulatory Commission P.O. Box 480 Middletown, PA 17057 Washington, D.C. 20555 Docketing and Service Section (3) Mr. and Mrs. Norman Aamodt Office of the Secretary 200 North Church Street U.S. Nuclear Regulatory Commission Parkesburg, PA 19365 Washington, D.C. 20555 Ms. Louise Bradford Atomic Safety & Licensing Board TMI ALERT Panel 1011 Green Street U.S. Nuclear Regulatory Commission Harrisburg, PA 17102 Washington, D.C. 20555 Joanne Doroshow, Esquire Atomic Safety & Licensing Appeal The Cnristic Institute Board Panel 1324 North Capitol Street U.S. Nuclear Regulatory Commission Washington, D.C. 20002 washington, D.C. 20555 Lynne Bernabei, Esq.
G #*r ment Accountability Jack R. Goldberg, Esq. (4) r Office of the Executive Legal .F55 Connecticut Avenue Washington, D.C. 20036 U.S N c ear Regulatory Commission Washington, D.C. 20555 Ellyn R. Weiss, Esq.
Marron, Weiss & Jordan Thomas Y. Au, Esq. 2001 S Street, N.W., suite 431 Office of Chief Counsel Washington, D.C. 20003 Department of Environmental Resource s Michael F. McBride, Esq.
l 505 Executive House LeBoeuf, Lamb, Leiby & MacRae P.O. Box 2357 1333 New Hampshire Avenue, N.W.
< Harrisburg, PA 17120 Suite 1100 l Washington, D.C. 20036 l
Michael W. Maupin, Esq.
Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, VA 23212
,